What Should You Do If the Square Footage in the Contract Differs from the Title Deed? (Defective Performance & Legal Rights)
8/11/20262 min read
What Should You Do If the Square Footage in the Contract Differs from the Title Deed? (Defective Performance & Legal Rights)
One of the most common issues encountered during real estate transactions or off-plan property sales is a discrepancy between the square footage promised in the sales agreement and the area recorded on the title deed (tapu) or actually delivered. Receiving a property smaller than specified in the contract is legally classified as defective performance (ayıplı ifa).
Under the Turkish Code of Obligations (TCO) and the Law on the Protection of Consumers (Law No. 6502), buyers faced with this situation have specific statutory rights and legal remedies.
Legal Nature: Missing Work or Defective Performance?
When a developer or seller delivers a property with a net or gross area smaller than what was committed to in the contract, it constitutes a defective good/service.
Gross vs. Net Area Discrepancy: Developers frequently base sales on gross square footage, leaving the net usable space unexpectedly smaller. However, if a specific net area is clearly stipulated in the contract and the delivered or title-registered space falls short, the seller incurs legal liability.
Optional Statutory Rights of the Buyer
A buyer impacted by a square footage deficiency possesses the following optional rights under Article 227 of the Turkish Code of Obligations and Article 11 of the Consumer Protection Law:
Rescission of the Contract (Cancellation of Sale): If the shortfall significantly hinders the intended use of the property, or if the buyer cannot reasonably be expected to accept it in its current state, the buyer may rescind the contract and demand a full refund of payments made, plus accrued interest.
Price Reduction / Compensation (Refund for Missing Area): If the buyer wishes to keep the property, they may demand a proportional reduction in the purchase price corresponding to the missing square meters.
Replacement with a Non-Defective Equivalent: If feasible within the same project, the buyer may request a swap for a unit that fully meets the contractual dimensions.
Time Limits and Notice Periods
To preserve legal remedies without forfeiting rights, paying close attention to notice deadlines and statutes of limitations is critical:
Situation / LegislationNotice PeriodStatute of LimitationsConsumer Transactions (Bought from Developer)Within a reasonable time upon discovery5 years from property delivery (no limitation if gross negligence or fraud is present)General Provisions (Bought from Private Individual - TCO)Immediately, in accordance with good faith2 years from transfer of ownership
Important Note: Signing title transfer documents without placing a formal reservation (ihtirazı kayıt) indicating acceptance subject to measurement discrepancies may create legal risks. It is essential to record a written reservation regarding missing square footage during the transfer or in the delivery protocol.
Recommended Legal Steps
Formal Assessment: Engage a survey engineer or independent expert to officially determine the net and gross dimensions, comparing the physical site with the approved architectural plans and title registry.
Serve a Legal Notice: Issue an official notary notice (ihtarname) to the seller or contractor stating the defect and exercising your chosen legal remedy (price reduction or contract cancellation).
Litigation: If the seller fails to comply, file a lawsuit in the Consumer Court (for consumer purchases) or the Civil Court of First Instance (Asliye Hukuk Mahkemesi) for general real estate transactions.
Özocak&Altun Law Office provides expert legal counseling and representation in real estate disputes, square footage discrepancies, defective performance litigation, and property contract reviews.
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