In Turkish and Swiss law, the right of pre-emption is one of the rights that create a sales relationship and one of the restrictions on real estate ownership. In German law, it is regulated as a special type of sale contract. The right of pre-emption can only be established for a certain period of time, with the exception of cases where the right arises from the law. While these periods are clearly regulated in Turkish and Swiss law, there is no regulation on this subject in German law.The limitation that the right of pre-emption is subject to in terms of duration also applies to the use of the right. In this context, Turkish, Swiss, and German legal systems provide different periods for the use of the right of pre-emption. This difference should be considered according to the source of the right and also the nature of what constitutes its subject. In determining the beginning of the periods regarding the pre-emption right, the moment of establishment of the contract establishing the right and the moment of the pre-emption event are of great importance. The same applies to the moment and manner in which the right holder is informed. At this point, it is debatable whether the notification made by the land registry officer will result in the start of the period. There may be special circumstances during the exercise period of the pre-emption right. Precautionary use of the right and situations where complementary procedures are required are some of these. Finally, the validity of the arrangements made by the parties regarding the pre-emption right periods is another problem that needs to be addressed.
Sales Relationship Establishing Rights Right of Pre-emption Preemption Event Formative Right Period of Prescription
The right of pre-emption is a formative right. With the use of the right, a sales contract is established between the parties.
Since the right of pre-emption is a formative right, the period to which it is subject is the period of prescription. The same situation exists in terms of the periods for the use of the right. For this reason, the consequences of being a period of limitation apply to these periods as well. For example, there is no suspension or interruption during the periods to which the right is subject.
In Turkish-Swiss law, the periods to which the right of pre-emption is subject are clearly regulated. However, in German law, it is accepted that the right of pre-emption can be established indefinitely.
The usage periods of the pre-emption right have different regulations in the Turkish, Swiss, and German legal systems. These periods are: While it is three months and two years for both contractual and legal pre-emption rights in Turkish law, in Swiss law, it is three months for contractual pre-emption rights and three months and two years for legal pre-emption rights. In German law, these periods are two months for the right of pre-emption regarding immovable properties; it’s a week about preemption, which deals with things other than real estate.
As a rule, the period subject to the right of pre-emption begins to run with the conclusion of the contract establishing the right. However, in cases where the birth of the right is tied to a maturity or condition, the beginning of the period is the moment when the maturity or condition is realized.
The usage periods of the pre-emption right begin to run when the pre-emption event occurs and the right holder is informed about the pre-emption event. While the moment of occurrence of the preemption event is sufficient in absolute terms, for relative periods, it is also required to inform the right holder.
Turkish, Swiss, and German law impose an obligation to inform the right holder in order for the right to be used. At this point, in our opinion, the regulations in Turkish law requiring notification through a notary are not accurate. In the context of the applicable law, the relevant provisions should not be applied, at least to the extent that they would eliminate the rule of good faith. It is only possible under Swiss law for the notification made by the land registry officer to initiate the periods if certain conditions are met.
It is not mandatory for the holder of the pre-emption right to complete complementary elements within the usage period of the right. In addition, it is possible for the right holder to exercise the pre-emption right, possibly subject to the occurrence of the pre-emption event. Apart from this, a pre-emption event is valid subject to the condition that the pre-emption right is not exercised. However, this condition cannot be claimed against the holder of the pre-emption right. Finally, the period to which the right of pre-emption is subject does not constitute an upper limit on the usage periods. The only thing required during this period is the realization of the pre-emption event.
Arrangements can be made by the parties regarding the pre-emption right periods. German law grants full freedom to the parties during the periods subject to the right of pre-emption. Turkish-Swiss law, on the other hand, argues that the relevant provisions have a mandatory nature in terms of determining the upper limit. Therefore, only decisions that do not exceed the maximum period are valid. Regarding the usage periods of the right, there is no uniform solution in the Turkish, Swiss, and German legal systems. This result is quite normal, considering that all three legal systems have very different legal regulations. At this point, our opinion in terms of Turkish law is that regulations stipulating a shorter or longer period of three months should be valid. In terms of the two-year period, only regulations stipulating a period of less than two years should be considered valid.
The right of pre-emption ends upon the expiration of the period to which it is subject. If the right is not used within the usage period, whether the right will expire or not is determined according to the concrete event. The unannotated pre-emption right expires upon the expiration of its period of use. An annotated pre-emption right maintains its existence as long as the period to which it is subject does not expire. The last situation is also valid for the legal right of pre-emption. However, for legal pre-emption, the continuation of the joint ownership relationship that gives rise to the right is sufficient. Otherwise, it is no longer possible to talk about the maximum period to which the legal preemption right is subject.
