Parentela System in Turkish Succession Law, Inheritance Shares and Procedure in Termination of Co-Ownership Cases

THE PARENTELA SYSTEM IN TURKISH INHERITANCE LAW, INHERITANCE SHARES AND PROCEDURES AND PRINCIPLES IN ACTIONS FOR REMOVAL OF CO-OWNERSHIP

ABSTRACT

This study examines in detail the "Parentela System" (Class System), which is one of the fundamental building blocks of the inheritance law provisions of the Turkish Civil Code, and the determination of inheritance shares within this system. Subsequently, the study examines the legal nature of the inheritance co-ownership created by the transfer of inheritance, the problems created by joint ownership among heirs, and removal of co-ownership (izale-i şuyu) actions as the solution to these problems. Methods of in-kind division and distribution through sale, the established case law of the Court of Cassation, party composition, distribution of sale proceeds, and situations that have special characteristics in terms of procedural law such as claims regarding improvements, have been comprehensively analyzed from the perspective of judges, prosecutors, lawyers, and notaries, who are law practitioners.

I. INTRODUCTION

Inheritance law is the legal field that regulates to whom and how all rights and obligations that can be measured in money (the estate) will pass in case of the death of a natural person or a decision of disappearance. In the Turkish legal system, heirship is divided into two categories: "legal heirship" and "appointed heirship." Legal heirship is based on the will of the legislator, while appointed heirship is based on the will of the testator.

In determining legal heirship, the Turkish Civil Code (TCC) has adopted the "Parentela System," a classification system based on blood kinship. This system aims to distribute the inheritance in a fair and logical manner. However, the transfer of the inheritance does not end the process; rather, it initiates a new legal relationship among heirs called "Inheritance Co-ownership." The management and liquidation of this co-ownership is one of the areas where the most disputes arise in practice.

II. THE PARENTELA SYSTEM IN TURKISH INHERITANCE LAW

The parentela system is the classification of persons who have blood kinship with the testator according to their degree of proximity to the testator. The basic rule of this system is: "As long as there is an heir in the previous class, the next class cannot be an heir." In other words, even if there is only one heir in the first class, the inheritance does not pass to the second class.

A. First Class (Descendants)

In accordance with Turkish Civil Code Article 495, the first-degree heirs of the testator are his descendants. The concept of descendants includes his children, grandchildren, and the children of his grandchildren.

• Equality Principle: Children are equal heirs regardless of gender or age difference.
• Representation Principle: Children who died before the testator are replaced, at each degree, by their own descendants through representation. For example, if the testator's son died before him, the son's share passes to the grandchildren.

B. Second Class (Parents and Their Descendants)

In accordance with Turkish Civil Code Article 496, the heirs of a testator who has no descendants are his mother and father.

• If the testator has no children or grandchildren, the inheritance passes to the second class, that is, to the mother and father.
• The mother and father are heirs in equal proportions.
• If the mother or father died before the testator, their place is taken by their own descendants (the testator's siblings and nephews/nieces). This situation forms the basis for the heirship of siblings. Siblings can only be heirs if the testator has no descendants and one or both of the parents are deceased.

C. Third Class (Paternal and Maternal Grandparents and Their Descendants)

In accordance with Turkish Civil Code Article 497, the heirs of a testator who has no descendants, parents and their descendants are his paternal and maternal grandparents.

• The inheritance is divided into two parts: paternal and maternal. One half goes to the paternal grandparents, and the other half goes to the maternal grandparents.
• The representation principle also applies in this class. If a paternal or maternal grandparent is deceased, their share passes to their own descendants (the testator's uncles, aunts, and cousins).

D. Heirship of the Surviving Spouse

The surviving spouse is outside the parentela system but can be an heir together with each class. The inheritance share of the spouse varies depending on the class with which she/he is an heir together (Turkish Civil Code Article 499):

1. Together with the first class (with children): The spouse receives 1/4 of the inheritance, and the children receive 3/4.
2. Together with the second class (with parents and siblings): The spouse receives 1/2 of the inheritance, and the second class receives 1/2.
3. Together with the third class (with grandparents and their children): The spouse receives 3/4 of the inheritance, and the third class receives 1/4. (It should be noted here that the spouse can only be an heir with the heads of the third class and their children [uncles, aunts] in the third class. The spouse cannot be an heir with cousins; the spouse receives the cousins' share as well.)
4. If there are no heirs in any class: The entire inheritance goes to the spouse.

III. THE LEGAL NATURE OF INHERITANCE CO-OWNERSHIP AND JOINT OWNERSHIP

Upon the death of the testator, the estate passes as a whole to the heirs (in accordance with the principle of universal succession). In the case of multiple heirs, the legislator has provided for the institution of "Inheritance Co-ownership" in order to protect the rights of the heirs and ensure the integrity of the estate during the period until the inheritance is distributed (Turkish Civil Code Article 640).

In this type of co-ownership, ownership is subject to the principles of joint ownership (co-ownership). The basic characteristics of joint ownership are as follows:

• Indefiniteness of Shares: The ownership right of the co-owners (heirs) extends to the entire estate. Although the inheritance shares (such as 1/4, 3/8) are determined, these shares are of the nature of "liquidation shares." There is no actual division of the property.
• Necessity for Joint Disposition: As long as the co-ownership continues, dispositive acts on the estate property (sale, gift, mortgage, lease, etc.) can only be made with the unanimous consent of all co-owners.
• Representation: Unless a representative is appointed to the inheritance co-ownership, the co-owners must act jointly in lawsuits (Forced Joinder of Parties).

This rigid structure causes serious disputes in practical life regarding the use, leasing, or sale of real property. Even the objection of a single heir can prevent the exploitation of the property.

IV. THE RIGHT TO DEMAND DISTRIBUTION AND THE ACTION FOR REMOVAL OF CO-OWNERSHIP

In accordance with Turkish Civil Code Article 642, "Each of the heirs may demand distribution of the inheritance at any time, unless they are obliged to continue the co-ownership by contract or law." This provision emphasizes the temporary nature of inheritance co-ownership. Knowing the unsustainable structure of joint ownership, the legislator has given each co-owner the power to dissolve this relationship.

Heirs can distribute the inheritance among themselves by mutual agreement (Amicable Distribution). This is the most ideal way. However, when agreement cannot be reached between the parties, a heir cannot be reached, or a heir is restricted, the judicial remedy of Removal of Co-ownership (İzale-i Şuyu) action becomes relevant.

A. Competent Court

In accordance with Turkish Civil Code Article 4/1-b of Law No. 6100 (Code of Civil Procedure), the competent court in cases concerning the distribution of movable or immovable property or rights and the removal of co-ownership is the Family Court. The value of the subject matter of the dispute (no matter if it is many millions of lira) is of no importance. The court having jurisdiction is the court of the place where the real property is located. If there are multiple real properties, the court of the place where any one of them is located also has jurisdiction.

B. Party Composition Problem

Actions for removal of co-ownership are "bilateral" (actio duplex) in nature in terms of procedural law. That is, both the plaintiff and the defendant have the same rights; the defendant can also demand sale, and the judgment produces consequences for both parties.

As frequently emphasized in Court of Cassation practice, party composition in these actions is related to public policy. Due to the nature of joint ownership, all co-owners must participate in the lawsuit. If one of the co-owners dies, his heirs must also be included in the action. The merits of the case cannot be examined without proper party composition, and no judgment can be rendered.

As stated in the decision of the Court of Cassation 14th Civil Chamber, 2015/9835 Case, 2015/9545 Decision: "After ensuring that the heirs, according to the inheritance certificate obtained upon the death of one of the co-owners or partners, participate in the lawsuit, the merits of the case should be examined."

V. DISTRIBUTION METHODS: IN-KIND DIVISION AND SALE

When deciding on the removal of co-ownership, the court first examines the possibility of "in-kind division" (physical division of the property). If this is not possible, the court resorts to removal "through sale" (distribution of proceeds).

A. In-Kind Division (Physical Division)

In accordance with Turkish Civil Code Articles 642/2 and 699/2, the judge must first decide to distribute the property by dividing it in kind. However, certain conditions must be present for this:

1. Material and Legal Suitability: The real property must be suitable for division in terms of its area, nature, and zoning regulations (minimum indivisible sizes of agricultural land, municipal zoning plans, etc.).
2. Value Loss: The division should not result in a significant decrease in the value of the real property.
3. Equalization: If the values of the divided parcels do not balance each other, equalization can be provided by adding money to the parcel with the lesser value.

B. Removal Through Sale

In cases where in-kind division is not possible (which, in practice, is often the case due to zoning regulations) or where agreement on this matter cannot be reached among the parties, the co-ownership is removed through sale.

• Sale Procedure: The sale is, as a rule, conducted through public auction in accordance with the provisions of the Enforcement and Bankruptcy Law. This is to ensure that the property is sold at the highest price.
• Sale Among Heirs: However, if all heirs agree and approve, it may be decided that the sale be made only among the heirs (Turkish Civil Code Article 699/3). If even one heir objects, the sale must be made to the public.

VI. IMPORTANT LEGAL PROBLEMS IN LIGHT OF COURT OF CASSATION CASE LAW

1. The Relationship Between Prevention of Ejectment and Removal of Co-ownership

A frequently encountered error in practice is that heirs file an action directly against each other for "prevention of ejectment" (prevention of interference). The Court of Cassation states that in divided or joint ownership, a co-owner cannot file an action for prevention of ejectment on the grounds that they are using less space unless another co-owner is completely excluding them from the real property. The solution to this problem is the removal of co-ownership action, which brings a final result.

Court of Cassation 7th Civil Chamber, 2021/3989 Case, 2022/3630 Decision:

"In accordance with established Court of Cassation case law and scientific opinion in the same direction, the co-owner alleging that he used less space than his share should solve the problem not by filing an action for prevention of ejectment, but by filing an action for in-kind division or for removal of co-ownership through sale, which brings a final result."

2. Distribution of Sale Proceeds and the Effect of Type of Ownership

When the court decides on the sale, the distribution of the sale proceeds to the heirs must be clearly indicated in the operative part of the judgment. This distribution varies depending on the type of ownership recorded in the land registry of the real property.

Court of Cassation 14th Civil Chamber, 2015/9835 Case, 2015/9545 Decision:

"The real property, the sale of which is decided, should be distributed as follows: a) If it is subject to joint ownership provisions, the sale proceeds should be distributed in proportion to the shares of the co-owners in the land registry; b) If it is subject to joint ownership provisions, the sale proceeds should be distributed in proportion to the shares in the inheritance certificate..."

3. Claim of Improvements (Bekletici Mesele / Preliminary Question)

The most frequently encountered and time-consuming situation in removal of co-ownership actions is the claim of "improvements." One of the heirs may claim that the building, trees, or facilities on the real property (improvements) belong to him and not to the testator.

• If all heirs accept this claim, the court takes this situation into account in the distribution of the sale proceeds through proportioning.
• However, if even one heir does not accept this claim, the claimant is given a time period to file an action in the Court of First Instance for "Determination of the Ownership of Improvements." This action is made a preliminary question for the removal of co-ownership action. The removal of co-ownership cannot be decided upon until the determination action is concluded.

4. Formal Requirements of the Distribution Agreement

If the heirs have made an "Inheritance Distribution Agreement" among themselves before going to court, the validity of this agreement is subject to the requirement of written form (Turkish Civil Code Article 676). Notarization is not required; simple written form is sufficient. However, the signature of all heirs is required.

Court of Cassation 14th Civil Chamber, 2016/300 Case, 2018/776 Decision:

"The validity of a distribution agreement is dependent on its being made in written form (Turkish Civil Code Article 676)... Distribution agreements in which not all heirs participated are invalid."

5. Principle of Equality in Distribution

During distribution, it is not absolutely necessary that each heir be given real property of equal area. What is important is fairness and economic value balance. For example, one heir may be given a more valuable but smaller parcel, while another may be given a less valuable but larger parcel; the difference is equalized with money.

Court of Cassation 7th Civil Chamber, 2009/6322 Case, 2010/4578 Decision:

"...in distribution, it should be borne in mind that it is not a condition of distribution that each heir receive real property of equal area and equal productivity or personal property of the same economic monetary value..."

VII. CONCLUSION

In Turkish inheritance law, the parentela system is the fundamental mechanism that ensures fair distribution of the inheritance among blood relatives. However, the joint ownership created by the transfer of the inheritance creates a difficult co-ownership relationship to manage among heirs. The "Action for Removal of Co-ownership" provided to end this relationship is a type of action directly concerning property rights and with intensive technical procedural rules.

Law practitioners must take into account the representation rules in the parentela system, the unanimous consent requirement brought about by joint ownership, that in-kind division is the priority but that zoning and value loss criteria are determinative. Additionally, the treatment of improvements claims as preliminary questions and the proportioning procedures in the distribution of sale proceeds are of vital importance for the validity of the action. In resolving disputes among heirs, a valid distribution agreement (with the participation of all heirs and compliance with written form requirements) is an effective solution, just as much as a court decision.