The brokerage contract is defined in Article 520 of the Turkish Code of Obligations No. 6098, “The brokerage contract is the contract in which the broker undertakes to prepare or mediate the possibility of establishing a contract between the parties and is entitled to a fee in case this contract is concluded.” defined as. In this context, real estate brokerage can be defined as "intermediary activity carried out for the purpose of establishing a real or personal right (sale, lease, etc.) on an immovable". We have examined the issue of real estate brokerage, which is frequently encountered by people who are especially interested in real estate investment consultancy and real estate activities, in the light of the Supreme Court practices and with its details.
What are the factors that distinguish a brokerage contract from a mandate contract?
A brokerage contract is a type of contract established between the broker and the business owner, in which the broker undertakes to create an opportunity or act as an intermediary, and the business owner owes the broker to pay a fee upon the establishment of the contract. In the power of attorney contracts, however, the power of attorney is not obliged to pay any fee to the agent. Regardless of whether it is verbal/written, payment debt cannot be accepted as a mandatory element of power of attorney contracts in any way.
In the practice and doctrine of the Supreme Court, there are the following opinions regarding the fee payment debt of the brokerage contract; “…The elements of brokerage can be identified as follows: The parties of the brokerage relationship are the broker and the business owner, and the broker has undertaken a power of attorney for the business owner, the subject of which is determined specifically. He (the broker) will receive remuneration for the activity he will perform for the business owner.” (Court of Appeals HGK 2014/1 E. 2015/1539 K. 10.06.2015 T.) “The principal performance obligation of the business owner is to pay wages to the broker.” (Assist.Prof.Dr.Bahar ÖCAL, APAYDIN, Istanbul Commentary Turkish Code of Obligations, Vedat Kitapçılık, Istanbul 2018, p.2269).
Are Brokerage Contracts subject to a form requirement?
Although the Turkish Code of Obligations has bound the brokerage agreement with the general provisions regarding the mandate agreement and in this direction, no form requirement has been stipulated in the general brokerage agreements, but the subject of brokerage agreements regarding real estate varies. Article 520/3 of the Turkish Code of Obligations No. 6098: “The brokerage agreement on immovables shall not be valid unless it is made in writing.” By saying that, it regulates that the brokerage contracts regarding the real estate should be in writing as a legal condition.
When does the business owner’s wage payment obligation arise in the presence of a valid and written contract on behalf of the Real Estate Brokerage?
With the brokerage agreement, the broker is under the obligation to create an opportunity or to act as an intermediary. In addition, the broker, as a rule, is entitled to a fee with the conclusion of the contract; unless it was decided otherwise.
When the Supreme Court decisions on the subject are examined; It is deemed sufficient for the broker to bring the broker to the stage of concluding the contract for the sale of the real estate in order to be entitled to the fee; In the brokerage agreement regarding the real estate, if the business owner refuses to sign a contract with the third parties offered to him without any reason, the broker will be entitled to a fee; If it is decided that the brokerage fee will be paid if the real estate owner makes the sale in any way, even if not through the broker/real estate broker, the owner has to pay the fee even if the broker does not contribute to the realization of the sale; There are decisions that it can be decided that a fee will be paid even if the brokerage contract and the main contract do not come into existence. (Decision of the General Assembly of the Supreme Court of Appeals, 10.06.2015 T. 2014/1 E. 2015/1539 K.)
Is the subject of the "Immovable Brokerage Agreement" a single immovable? Can more than one immovable be subject to a contract?
Yes, more than one real estate owned by the business owner may be subject to the relevant brokerage agreement. However, rather than the number of immovables that are the subject of practice, it is checked whether the relevant contract is permanent in order to make the definition of the contract appropriate. If the person working as a broker has been or has started to act as an intermediary for the business owner, it cannot be said that there is a "brokerage contract" here. In this case, it will be accepted that there is a "marketing" or "agency" relationship between the parties.
As a result, if we need to list the most misunderstood points in Brokerage Agreements regarding Real Estate:
The broker thinks that he/she will not be liable to pay wages if he/she does not approve this sale despite providing the appropriate environment for the sale, but it is sufficient to provide a suitable environment for the emergence of the payment debt in accordance with the established practice of the Supreme Court,
Undertaking that the Brokerage Agreements regarding the real estate meet the validity conditions, even if they are made verbally,
The broker, who constantly acts as an intermediary in the sales of a business owner's immovables, believes that the provisions of the brokerage agreement will be applied for each immovable.
As Unal&Partners law firm, we warn each of our clients and potential client candidates, whether they are business owners or brokers, to be careful about the above-mentioned issues. You can always contact the lawyers of our law firm, who are experts in their fields, both on the brokerage contract and on all the remaining issues that are our area of expertise, and you can access detailed information.
Unal§Partners Legal Team
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