A real estate promise to sell is a legal act that grants one or both parties the right to request the conclusion of a contract for the sale of a real estate. A real estate promise to sell can be executed as a legal act that imposes a debt on one or both parties. If the owner of the property enters into a contract for the sale of the real estate without imposing any obligation on the other party, a unilaterally obligatory promise to sell occurs. However, in practice, it is often observed that real estate promises to sell are often drafted in a way that imposes a debt on both parties. Accordingly, the real estate owner promises to sell the property while promising to pay the other party. Thus, the real estate promise to sell is drafted in a way that imposes a debt on both parties. It is important to note that a real estate promise to sell that imposes a debt on both parties must be signed by both parties. Otherwise, the contract is null and void.
However, there is no specificity regarding the legal nature of a real estate promise to sell. Similarly, the legal literature embraces differing opinions on the matter. According to one view, a promise to sell a property constitutes a preliminary contract, while another view holds that such transactions constitute a semblance of a real estate sales contract. It should be noted that the prevailing view in the doctrine is that a promise to sell a property constitutes a preliminary contract. Indeed, the Supreme Court of Appeals has predominantly stated in its decisions that a promise to sell a property constitutes a preliminary contract.
Supreme Court of Appeals General Assembly of Civil Chambers, Merits No: 2020/251, Decision No: 2022/1348;
“…There are different definitions in the doctrine regarding real estate promise-to-sell contracts, and according to the majority opinion, real estate promise-to-sell contracts are defined as a preliminary contract that includes the obligation to sell a real estate to a specific person under certain conditions in the future and grants one or both parties the right to request the conclusion of a contract for the sale of the real estate…”[2]
It should be noted that, due to its acceptance as a preliminary contract in both legal doctrine and Supreme Court decisions, the real estate sale promise must contain the essential elements of the real estate sale contract, which is the main contract. The essential elements of the real estate sale contract, which is the main contract, are the real estate to be sold and its price. Consequently, the real estate and its price must be specified or determinable in the real estate sale promise agreement. More precisely, if the real estate or its price are not explicitly specified in the real estate sale promise agreement, these obligations must be determinable at the time of performance.
Furthermore, if there is joint ownership of the real estate promised to be sold, it is not possible for one of the owners to make a promise to sell the real estate alone. In cases of joint ownership, a promise to sell the real estate can only be made with the consent of all the owners. In cases of joint ownership, since each of the shareholders can freely dispose of their own share, each of the shareholders can enter into a promise to sell the real estate for their own share.
On the other hand, since a real estate promise to sell agreement is a preliminary contract, it is subject to the official form of the real estate sale agreement. Article 26 of Land Registry Law No. 2644 stipulates that real estate sale agreements must be drawn up by the land registry director or land registry officials. As can be understood from this provision, since a real estate sale agreement must be formally drawn up at the land registry office, the real estate promise to sell, which is its preliminary contract, must also be formally drawn up at the land registry office. However, Article 60/3 of Notary Public Law No. 1512, titled “General Acts to be Performed by Notaries,” stipulates that “…to draw up a real estate promise to sell agreement and, upon request by one of the parties and payment of the fees and expenses, to annotate this agreement in the land registry through the land registry information system, to draw up a real estate sale agreement…”, which stipulates that a real estate sale agreement can be drawn up ex officio before a notary public. If you pay attention, the Law does not consider it sufficient and valid to make a promise to sell a property in the form of a signature confirmation at a notary, but it requires that it be made in the form of a regulation.
The explicit regulation of the real estate sale promise in Article 60/3 of the Notary Law has led to uncertainty regarding where this legal transaction should be conducted. The prevailing view in the doctrine is that, because a real estate sale contract is executed at the land registry office, the real estate sale promise, which serves as a preliminary contract, should also be executed at the land registry office. Another view held in the doctrine is that, because the real estate sale promise is reserved for notaries by the Notary Law, this transaction cannot be executed at the land registry office.
In our opinion, a real estate sale promise agreement should also be drafted at the land registry office. Indeed, in accordance with the principle that “there is a little in the many,” as stated in established Supreme Court decisions, it should be accepted that a real estate sale promise, which serves as a preliminary contract, can also be drafted at the land registry office where the real estate sale contract is executed. Therefore, a real estate sale promise can be executed at the notary office or at the land registry office, depending on the parties’ preference.
Supreme Court of Appeals Civil General Assembly, Merits No: 2024/3-752, Decision No: 2025/415;
“…Although the plaintiff filed the lawsuit alleging that the defendant promised to transfer the land title deed through the contract, it appears that no such obligation was stipulated in the contract. On the contrary, it included terms stating that the plaintiff could use the electricity and water subscriptions and that the plaintiff would subsequently pay the outstanding balance.
To understand the parties’ intentions with the contract in question, the contractual terms must be considered as a whole.
The wording used in the contract, the fact that the full contract price was paid, and the fact that the lawsuit was filed five years after the contract was signed, demonstrate that the contract aimed to transfer possession, not title. Furthermore, since the land in question is Treasury land, it is clear that the defendant cannot transfer its title deed. In this case, the First Instance Court and the Regional Court of Justice’s assumption that the contract in question aimed to promise the sale of the land registered in the land registry, and therefore, because it was not executed officially and therefore invalidated, the defendant, who has unjustly enriched himself, must return what he received, is inappropriate.”[3]
Court of Cassation, 3rd Civil Chamber, Merits No: 2025/49, Decision No: 2025/3582;
“…The dispute concerns the request for the return of the money paid pursuant to the external real estate sales contract, in accordance with the provisions on unjust enrichment.
Based on the reasoning stated in the appealed decision, and particularly on the grounds that the external real estate sales contract, concluded verbally between the parties, was deemed invalid due to lack of formal execution, the parties have the right to reclaim what they gave each other under the contract, in accordance with the provisions on unjust enrichment, and the fact that the 10-year statute of limitations had not expired by the date of the lawsuit and amendment, it was decided to reject the defendant’s appeal and approve the decision.”[4]
Court of Cassation, 3rd Civil Chamber, Merits No: 2025/96, Decision No: 2025/363;
“…The dispute concerns the request for the cancellation of the real estate promise to sell contracts in the form of an arrangement between the defendant and the non-complicit … based on allegations of forgery.
In the present case, it is understood that the Real Estate Promise to Sell contracts, drawn up by the notary public of …, dated 03.08.2016, with the journal numbers …, …, and …, were executed between the non-complicit …, acting as the son of the deceased, and the defendant. The lawsuit was filed by the estate clerk appointed to the deceased’s estate pursuant to the interim decision issued in case number 2018/26 of the Istanbul Anatolian 2nd Civil Court of Peace.
Because a contract creating a personal debt is valid, the debtor does not need to be the owner of the real estate registered in the land registry on the date of the sale promise. The real estate promise to sell contract is a promissory transaction and, while remaining valid as a commitment, creates a result between the parties to the contract. The request in this case is for the cancellation of the real estate promise to sell contract in the form of an arrangement. “It is understood that the plaintiff has no legal interest since the estate officer who is not a party to the contract is not a party to the contract in accordance with the principle of proportionality and there is no title deed cancellation and registration case filed against the estate regarding the immovable properties in question. Therefore, the case should have been rejected, but ignoring the explained issue is against procedure and law, and the decision should have been reversed.”[5]
[1] The following academic article was used in the study: Acar, B. (2024). EMSAL YARGITAY KARARI IŞIĞINDA TAŞINMAZ SATIŞ VAADİ SÖZLEŞMESİNE BAKIŞ. Konya Barosu Dergisi (1), 59-96.
[2] Supreme Court of Appeals General Assembly of Civil Chambers, Merits No: 2020/251, Decision No: 2022/1348.
[3] Supreme Court of Appeals Civil General Assembly, Merits No: 2024/3-752, Decision No: 2025/415.
[4] Court of Cassation, 3rd Civil Chamber, Merits No: 2025/49, Decision No: 2025/3582.
[5] Court of Cassation, 3rd Civil Chamber, Merits No: 2025/96, Decision No: 2025/363.