a. Types of Defects

Defects in a residence may not always be apparent at first glance. Therefore, a distinction between open defects and hidden defects is necessary. The Turkish Code of Obligations No. 6098 (TBK) Article 223 categorizes this situation as “defects that can be revealed through a routine inspection”: “If the buyer, upon taking possession, examines the purchased item as can be done in the ordinary course of business and detects a defect that triggers the seller’s liability, they must notify the seller of this within a reasonable period. If the buyer neglects the examination and notification, they are deemed to have accepted the purchased item. However, if there is a defect that cannot be revealed through a routine examination, this provision does not apply. If such a defect is discovered later, it must be reported to the seller immediately; if not reported, the purchased item is deemed accepted with that defect.” The article places the burden of routine examination for defects that can be revealed through ordinary inspection on the buyer. Defects that can be revealed through routine inspection are referred to as open defects, while defects that cannot be revealed through routine inspection are classified as hidden defects. In addition to open and hidden defects, there is another category known as “manifest defect,” which refers to defects in the purchased item that are known and visible during the sales contract, and the seller is not responsible for such defects under TBK Article 222. The same issue is also regulated in Consumer Protection Law Article 10: “In cases where the consumer is aware of the defect at the time of the establishment of the contract or where it is expected that the consumer is aware, there is no non-conformity in the contract. The consumer’s elective rights against other defects are reserved.” These elective rights are regulated in TBK Article 227 and include the right to rescind the contract, request a reduction in the purchase price in proportion to the defect, request free repair of the purchased item, and request replacement with an equivalent item free from defects. The right of the buyer to claim damages for the losses suffered due to defects is also addressed in the same article. The buyer is deemed to have exercised their elective rights by unilaterally conveying their intention to the other party, and this expression of will, which reaches the dominion of the other party without the need for any action, has automatic consequences and cannot be subject to conditions or misuse. Therefore, since the exercise of these elective rights does not require the approval of the other party or a court decision, if a lawsuit is filed regarding the exercise of these elective rights, the judge will only determine whether the exercise of the elective right is justified. In the end, this lawsuit is explanatory in nature.

In the case of a defect notification, if the buyer is assumed to be a merchant, the degree of care the buyer must show will change. While an “ordinary degree of care expected from a moderately careful buyer” is expected from a non-merchant buyer, a buyer who is a merchant is expected to examine this real estate with “the care that an average expert in the relevant business or profession should show with experience, knowledge, and expertise.”

b. Statute of Limitations for Defect Notification

For lawsuits arising from a promise of sale for real estate, since a specific statute of limitations period is not envisaged, the general statute of limitations period of ten years under the Turkish Code of Obligations Article 146 is applied, and this period starts running after the possibility of performance of the contract arises. According to a decision of the 14th Civil Division of the Court of Cassation dated 2016/4048 E. 2019/144, “However, in lawsuits filed after the expiration of the ten-year statute of limitations period, where the immunities are presented against defects that have occurred after the passage of ten years, the statute of limitations defense is not admissible in accordance with the principles of good faith under Article 2 of the Civil Code.” However, when looking at TBK Article 244/3, it states, “Actions arising from a defect in a structure are subject to a limitation period of five years from the transfer of ownership, and twenty years if the seller is grossly at fault.” The five-year statute of limitations period applies to “ordinary defects” in independent sections of the building and starts running from the “transfer of ownership” of this real estate. Consumer Protection Law Article 12 states, “Unless a longer period is specified in the laws or the contract between the parties, the responsibility for defective goods, even if the defect becomes apparent later, is subject to a two-year statute of limitations from the date of delivery of the goods to the consumer. In the case of residential or vacation immovables, this period is five years from the date of delivery of the immovable.” indicating that the statute of limitations for real estate starts from the date of delivery of the real estate and is five years.

“The jurisdiction of the courts is based on public order. Therefore, the parties cannot determine the competent court by mutual agreement. Regardless of the value and amount of the subject matter, in cases related to property rights and personal status, the competent court is the court of first instance unless there is a different regulation. If a dispute arising from a promise of sale of immovable property falls under the jurisdiction of a special court according to the provisions of special laws, that special court is competent to hear the case. In practice, conflicts of jurisdiction often arise between consumer courts and courts of first instance. In cases where residential or vacation immovable property is the subject of a consumer transaction, the competent court for disputes arising from such relationships will be the consumer court. In places where there is no separate consumer court, cases within the scope of the Consumer Protection Law must be handled by the court of first instance as a ‘consumer court.’ If a contract is made within the scope of professional or commercial activities, the competent court is the court of first instance according to Article 2 of the Turkish Civil Procedure Code, rather than the consumer court.”