When the price in a pre-emption action changes while the proceedings are under way, the economic burden the claimant has taken on in order to acquire the share is directly affected. A person who has deposited the price calculated under the old rule may be required to make an additional payment as a result of a new valuation. The dispute then goes beyond what the immovable is worth in liras: it must also be explained how the burden later demanded of the claimant fits with the legal order the claimant relied on when filing suit and with the rights of the other party.
Article 734 of the Turkish Civil Code was amended by Law No. 7571, which entered into force on 25 December 2025; the second paragraph of transitional Article 1, added by the same Law, provided for the amendment to apply to actions filed earlier as well. This article examines the constitutional review of that transition and its consequences in pending files, that is, files still being heard.[1]
For general explanations on the arising of the right of pre-emption, the time limits for suit, de facto partition and the court with subject-matter jurisdiction, our existing guide can be read: Action for Cancellation and Registration of Title Based on the Right of Pre-emption.
How the new price rule affects a pending action
The new Article 734/2 of the Turkish Civil Code (TMK) provides that the judge shall determine the market value of the share that is the subject of the action without delay, and that this amount, together with the registration costs falling on the buyer, shall be deposited in cash within a peremptory period. The money will earn interest; once the judgment becomes final it will be paid, with its accrued interest, to the person entitled. Failure to perform the obligation in time is an obstacle to registration in the claimant's name.[1]
The date of sale and the date of the action answer different questions
The transitional article protects earlier sales as regards the time limit and sale-type amendments in TMK Article 733, while applying the price amendment in Article 734 to actions filed earlier as well. Accordingly, the old preclusive period being valid for an old sale does not necessarily mean that the price will also remain under the old rule.[1]
In the constitutional assessment of this distinction, the relationship between the time at which the right may be exercised and the economic conditions of exercising it matters. Preserving the period may give the claimant the possibility of filing suit; on the other hand, a high cash burden arising later may make it harder to reach the claimed outcome in an action already filed. The difference between the two transitional choices does not on its own lead to a finding of unconstitutionality; the purpose of the difference and its effect on the parties must be assessed separately.
A price deposited earlier does not remove the new calculation
In its decision of 4 February 2026, File No. E.2025/2386, Decision No. K.2026/575, the 7th Civil Chamber of the Court of Cassation (Yargıtay) accepted that a new market value calculation must be made in an action filed before the amendment. The decision provides for the earlier deposit and its accrued interest to be set off together, and for any resulting balance to be deposited as well, so that it earns interest.[2]
In an entirely hypothetical calculation, suppose the amount previously deposited is TRY 250,000, the accumulated interest is TRY 90,000, the determined market value of the share is TRY 1,200,000 and the registration cost falling on the buyer is TRY 20,000. On these assumptions, deducting the existing TRY 340,000 from the total of TRY 1,220,000 leaves a difference of TRY 880,000. In a real file, the date to be used, the costs and the bank records are examined separately. The purpose of the example is to show that the additional burden may be significant even after the old deposit is taken into account.
Why the date by which market value is determined matters
The new text of TMK Article 734 does not state the valuation date expressly. In its decision No. 575 mentioned above, the 7th Civil Chamber of the Court of Cassation adopted the date of the action for actions filed after the amendment, and 25 December 2025 for actions pending on the date of the amendment. The dissenting opinion argued for taking the market value on the date of sale and striking the balance through accrual of interest. The 25 December 2025 criterion is therefore not a date written verbatim in the law but the interpretation accepted by the majority in the decision.[1][2]
The Chamber's decision of 2 June 2026, File No. E.2025/5945, Decision No. K.2026/2870, likewise continued the same date distinction and set-off method. This shows continuity among the decisions examined; it does not mean that all files carry the same material conditions or that the interpretation will not change in the future.[13]
The Civil Plenary Assembly (Hukuk Genel Kurulu) decision of 1 April 2026, File No. E.2025/216, Decision No. K.2026/195, also states that the new price provision must be applied in actions filed earlier. However, that decision does not separately conclude the debate over the date by which market value is to be calculated. A decision's accepting application to pending actions must be distinguished from its adopting a particular valuation date.[3]
The constitutional problem also crystallises in this distinction. Investigating the real value on the date of sale, protecting the old price against inflation, and placing the market value of a later date on the claimant may produce different outcomes. Because the date used in the expert report affects the size of the economic burden, the legal basis of the report must be discussed as much as its calculation technique.
Assessment from the standpoint of the freedom to seek legal remedies
Access to court and being able to obtain an effective outcome in the proceedings
The guarantee in Article 36 of the Constitution protects a person's ability to put forward claims and defences before a court, and fair trial. In a pending pre-emption action, the matter to be examined is the extent to which an economic condition that changes later affects these guarantees.[4]
The pre-emption price cannot be characterised as a court fee; it is a material obligation performed in return for acquiring the share. Even so, making this obligation heavier during the proceedings may affect reaching the registration outcome sought from the court. A constitutional objection should not content itself with pointing to difficulty in paying; it needs to show why the amendment creates an unforeseeable and excessive burden in the specific file.
In this assessment, whether the old price was deposited, how long the proceedings have lasted, the claimant's contribution to any prolongation, how the new amount was calculated and whether the period given by the court is workable must be examined together. That the action was upheld at first instance may also matter in assessing the strength of the expectation; but a judgment that has not become final cannot be accepted as creating an immutable outcome.
Equality of arms and the effect of legislation on a pending dispute
In the Constitutional Court's Kahraman Vural decision, the abolition of the right by statute during a pre-emption action brought by the owner of adjoining agricultural land, and the dismissal of the action that resulted from this change, were examined. The Court assessed, from the standpoint of equality of arms, a legislative intervention producing a result in favour of one of the parties while the proceedings were under way, and found a violation.[5]
The value of this decision for today's debate is its approach of reviewing the effect of legislative intervention on the outcome of a pending action. The decision did not examine the market value provision introduced by Law No. 7571. The difference between abolishing a right entirely and changing a price condition must be taken into account; the extent to which the new price makes exercising the right harder in the specific case must be shown.
The European Court of Human Rights (ECtHR) decision in Vezon v. France likewise addresses statutory interference in a continuing private-law dispute from the standpoint of the fair trial guarantee. This approach shows that the State's not being a direct party to the case does not leave the interference outside review. As regards a statute affecting a pending case, the compelling public-interest grounds that could justify the interference and the scope of the interference are examined together.[6]
How legal certainty and legitimate expectation should be protected
Legal certainty requires that people can foresee, within reason, the consequences of legal rules when they arrange their conduct. This guarantee does not mean that no statute will ever change. It requires that the effect of a change on legal situations established in the past and on proceedings already begun be justified. A person who files suit relying on the old statute is not the same case as a person who holds an acquired and final right.
In the Constitutional Court's decision No. E.2018/108, K.2019/5, subjecting enforcement proceedings already begun to a rule introduced later was addressed from the standpoint of legal certainty. This decision's contribution to the pre-emption dispute is the importance of foreseeability at the start of the proceedings or action. It should be borne in mind that the decision concerned another legal relationship; its result should not be carried directly over to the pre-emption transitional provision.[8]
The strength of the expectation worth protecting in pre-emption depends on the circumstances of the specific file. An action filed in time, the deposit of the price set by the court and judgments given in the claimant's favour may be taken into account in this assessment. By contrast, having merely filed suit is not enough to show that acquiring the share at a particular amount is firmly guaranteed. Maintaining the distinction between an expectation and a final right of property strengthens the consistency of a constitutional objection.
The Constitutional Court's decision No. E.2024/152, K.2025/116 explains that statutory pre-emption is a statutory right and how its exercise relates to the protected sphere of the right of property. This approach provides a basis for taking the claimant's interest into account in constitutional assessment. However, the decision is not one annulling the market value provision that entered into force later or its transitional article.[9]
The buyer's right of property and loss of value must also be taken into account
In a pre-emption action, the interest of the buyer, who is asked to lose the share, is also protected. In the ECtHR's El v. Türkiye decision, the loss of value of the pre-emption price against inflation over a long process, without its earning interest in court, constituted a violation of the right of property. The decision does not establish that every increase in market value must be paid to the buyer; the loss in the value of money and the market increase in the immovable must be assessed separately.[7]
For this reason, constitutional review cannot rest solely on the claimant's request to benefit from the old price. What amount the buyer will receive and on what date, whether the deposit was delayed and how the money was protected must also be assessed. A concrete balance must be struck between the exercisability of the right of pre-emption and the buyer not suffering an excessive loss.
What questions should be asked in the proportionality review
In our view the basic question is whether the aim of protecting the buyer justifies, in every case, the additional burden placed on a person who filed suit before the amendment. The review should address the relationship of the new price to that aim, whether a lighter transitional model was possible, and the balance between the burden imposed on the claimant and the benefit achieved.
For example, taking the earlier deposit and interest fully into account, considering the different stages of the proceedings and fixing a foreseeable valuation date are elements that may be taken into consideration. For a new statutory transitional model, distinguishing among old files according to their features and expressly regulating litigation costs may also be discussed. These are not automatic exemptions recognised in the current statute, but solution options that may be examined in the proportionality assessment.
Does the Constitutional Court process automatically stop a pending file
File No. E.2026/23 is on the Constitutional Court's Plenary Assembly agenda of 16 July 2026, within the merits review of certain phrases in TMK Article 734/2 and transitional Article 1/2. The agenda entry shows that the file was placed on the agenda for examination; it is not in itself a decision of annulment or dismissal.[10]
On the official agenda of 21 October 2026, applications No. E.2026/246 and E.2026/247 concerning transitional Article 1/2 are also at the preliminary examination stage. The agenda and outcome record of 8 September 2026 shows that application No. E.2026/223 was dismissed for not complying with the required procedure. A dismissal on procedural grounds does not mean that the provision was found compatible with the Constitution. In assessing the effect of a decision on the merits, the reasoned text, the scope of the operative part, the date of entry into force and publication in the Official Gazette must be examined together.[10]
Concrete norm review and a general request to wait are different
Under Article 152 of the Constitution, if the court hearing the case considers the rule to be applied unconstitutional, or finds the party's allegation of unconstitutionality serious, it applies to the Constitutional Court and stays the case. If no decision is given within the five-month constitutional period running from the file's arrival at the Constitutional Court, it concludes the case according to the provision in force; if the Constitutional Court's decision arrives before the decision on the merits becomes final, it must comply with it.[4]
That another court has applied to the Constitutional Court about the same provision does not automatically stop the time limits in all pre-emption files. If a stay of the file is sought, the legal basis of the request, its connection with the dispute and the court's decision on the matter must be clarified. It should not be assumed that raising a constitutional objection automatically lifts the deposit obligation.
What points should be examined in a pre-emption action in which an additional price is demanded
The expert report and calculation method
It should be examined whether the report separates the share that is the subject of the action from the whole immovable, for which date it carried out the valuation, whether the comparables are truly comparable, and whether the old deposit and interest were taken into account. Concrete objections concerning the zoning and use characteristics of the immovable are more illuminating than merely saying that the price is high.
Under Article 281 of the Code of Civil Procedure (HMK), the period for objecting to an expert report is, as a rule, two weeks from service; an additional period may be requested under the conditions of the law and in time. An objection to the report and the peremptory period for depositing the price are separate procedures. It should not be accepted that resorting to one automatically stops the other.[11]
Clarity of the peremptory period and of the consequence of not depositing
In the court's interim decision, the amount to be deposited, the place, the period and the consequence of non-compliance must be clear. The peremptory period regime in HMK Article 94 is also taken into account in this respect. If it is thought that the amount was calculated wrongly or that the interim decision is not sufficiently clear, the matter should be brought before the court before the period expires.[11]
There is an important procedural distinction here: TMK Article 734/2 states that if the price is not deposited in time, registration of the share in the claimant's name cannot be ordered. This consequence is not, in itself, the removal of the file from the docket and the action being deemed not to have been filed within the meaning of HMK Article 150. Failure to pursue the case, waiver, withdrawal and non-deposit of the price depend on different conditions and have different consequences.[1][11]
Litigation costs and remedies
The general rule in HMK Article 326 is that litigation costs are borne by the party against whom judgment is given; special provisions and the manner in which the case ends are assessed separately. Being unable to meet the additional price because of the statutory change does not by itself create an exemption from costs or from the opposing party's attorney fees. An objection regarding costs must also be put forward with reasons.[11]
When appeal review (istinaf) and cassation review (temyiz) are in question, how the constitutional claim is handled together with the valuation date and the set-off calculation should also be assessed. Explaining objections concerning fundamental rights before the lower courts with the specific facts and documents is important for later reviews. An individual application, on the other hand, is not a direct route to having a statute annulled; admissibility conditions and ordinary remedies are examined separately.[4]
For the general conditions of individual application and common application errors, our related guide can be consulted: Conditions and Admissibility of an Individual Application to the Constitutional Court.
Assessment
Applying market value to pending pre-emption actions calls for serious constitutional assessment, because it changes the economic position of the parties during the proceedings. The review should address protecting the buyer from loss of value together with the claimant's legal certainty and fair trial guarantees. The difference between the position of a claimant who performed the obligation before the amendment and one who had not yet deposited the price should also not be left without reasons.
In our view, a strong constitutional objection must go beyond an abstract rhetoric of non-retroactivity and explain the additional burden the transitional provision creates in the specific file and why that burden is disproportionate. The accompanying practical work requires following the report, the old deposit and interest, the peremptory period and the appeals together. The constitutional review of the transitional provision and the follow-up of procedural obligations in force must be carried out simultaneously.
Frequently Asked Questions
Does the market value apply in a pre-emption action filed before 2025
Transitional Article 1/2 of the TMK provides for the price amendment to apply to actions filed earlier as well. The Court of Cassation decisions examined apply this provision to old actions that have not yet become final. The stage of the specific file and later norm-review decisions are assessed separately.[1][2][3]
Does having deposited the old sale price prevent an additional payment
Not on its own. In the new calculation, the old deposit and its interest are taken into account together; if the total is not sufficient, an additional payment may arise. The calculation needs to be compared against the bank records and the interim decision.[2]
Is the 25 December 2025 valuation date expressly written in the law
No. The new TMK Article 734 states that market value is to be taken as the basis; it does not expressly regulate the valuation date. This date was adopted by the majority, for pending actions, in the 7th Civil Chamber decision examined.[1][2]
Can the deposit be left unpaid because a Constitutional Court application exists
A Constitutional Court application in another file does not automatically stop the peremptory period in your file. The court's decision on concrete norm review and on staying the case must be examined separately.[4]
If the additional price is not deposited, is the action deemed not to have been filed
The consequence under TMK Article 734/2 is that registration cannot be ordered in the claimant's name. An action being deemed not to have been filed and its removal from the docket depend on different procedural provisions; this consequence cannot be drawn automatically from a deposit shortfall alone.[1][11]
Does an annulment decision given later automatically reopen a file that has become final
Such an automatic consequence cannot be accepted. The principle in Article 153 of the Constitution that annulment decisions do not operate retroactively is examined together with the scope and date of entry into force of the decision and the state of the specific file. For a Constitutional Court decision arriving before finalisation, Article 152 is separately important.[4]
Sources
1 — Law No. 7571, Arts. 35–37 and 39 — official legislative text, TBMM. Adopted 24.12.2025; Official Gazette 25.12.2025, No. 33118. Amending text of TMK Art. 734/2 and transitional Art. 1.
2 — Court of Cassation 7th Civil Chamber, 04.02.2026, E.2025/2386, K.2026/575. Official full text of the decision and dissenting opinion. Valuation date and set-off of the earlier deposit and interest.
3 — Court of Cassation Civil Plenary Assembly, 01.04.2026, E.2025/216, K.2026/195. Official full text of the decision, in particular paragraphs 23–24. Application of the new provision to actions filed earlier.
4 — Constitution of the Republic of Türkiye, Arts. 2, 13, 35, 36, 148, 152 and 153. Constitutional guarantees, concrete norm review and the effect of decisions.
5 — AYM, Kahraman Vural, Application No 2021/30295, 29.07.2025. In particular paragraphs 11–16. Full text of the decision as published by Hukuki Haber, checked against the official case details; not a review of Law No. 7571. Official decision record.
6 — ECtHR, Vezon v. France, Application No 66018/01, 18.04.2006. In particular paragraphs 30–34; legislative interference in a continuing private-law dispute. HUDOC case details; French full text of the decision on the Czech Ministry of Justice's Mezi–soudy portal. Official decision record.
7 — ECtHR, El v. Türkiye, Application No 35952/10, 16.11.2021. Turkish translation by the Ministry of Justice on HUDOC, in particular paragraphs 19–26. The distinction between market increase and the price's loss against inflation. Turkish translation of the decision.
8 — AYM, 13.02.2019, E.2018/108, K.2019/5. Enforcement proceedings already begun and legal certainty; in particular paragraph 33. Not directly related to the pre-emption transitional provision. Full text of the decision read via Legalbank. Official decision record.
9 — AYM, 03.06.2025, E.2024/152, K.2025/116. In particular paragraphs 32–33. Full text of the decision checked against the official case details; the relationship between pre-emption and the right of property. Official decision record.
10 — AYM Plenary Assembly agenda and outcome records — 16.07.2026, 08.09.2026 and 21.10.2026. E.2026/23 and joined files; E.2026/223 dismissed on procedure; E.2026/246 and E.2026/247 preliminary examination agenda. Verified against the indexed content of the official pages; the agenda entry was not used as a decision on the merits. 8 September 2026 agenda and outcomes. 21 October 2026 agenda.
11 — Code of Civil Procedure No. 6100, Arts. 94, 150, 281, 326 and related provisions. Peremptory period, failure to pursue the case, objection to the expert report and litigation costs.
12 — Sinan Erkam Şimşek — Considering the Provision Applying Market Value to Pending Pre-emption Actions in the Context of the Freedom to Seek Legal Remedies. Hukuki Haber, 14.10.2026. Relevant doctrinal assessment; the views and conclusions in this article were evaluated independently.
13 — Court of Cassation 7th Civil Chamber, 02.06.2026, E.2025/5945, K.2026/2870. Official full text of the decision; valuation date in a pending action, set-off of the earlier deposit and interest.