Law of Foundations

The Law of Foundations is a comprehensive legal field aimed at ensuring the statutory compliance of all processes, from the establishment to the management and real estate transactions of foundation structures formed by the dedication of assets to a specific and perpetual purpose, and at protecting the rights of foundations.

Within the Turkish legal system, the institution of foundations possesses a structure rooted in both Islamic tradition and Ottoman practices, having been re-systematized during the Republican era within the framework of a modern and secular legislative understanding. Throughout history, foundations have undertaken significant functions in fostering social solidarity and promoting public welfare. Legally defined, a foundation is a private law legal entity that arises from the dedication of a specific aggregation of assets to a perpetual purpose. During the establishment process, the foundation's purpose, scope of assets, and administrative structure must be clearly defined, and subsequently, the necessary documents and instruments prepared, with the procedures finalized before the Directorate General of Foundations.

Significant structural differences exist between the foundation law in force during the Ottoman period and post-Republican legislation. In the classical era, foundations were shaped by a legal logic based on Islamic jurisprudence (fiqh), distinguishing between 'productive assets' (akar) and 'charitable endowments' (hayrat), and the founder's will was considered absolute within the legal order. At that time, the registration of foundation deeds (vakfiye) in the qadi's registers held the binding force of a judicial decree. In contrast, during the Republican era, the establishment of foundations was made subject to specific formal requirements, their organization and activities were subjected to intensive administrative and judicial oversight, and all provisions were regulated within a uniform system by the Turkish Civil Code.

During the drafting of a foundation's charter, it is of paramount importance to meticulously examine not only the founder's declaration but also the prevailing legislation. If a provision within the charter contravenes public order, the registration process may be rejected or an existing registration annulled following an administrative assessment. Therefore, careful consideration of current jurisprudence, statutory requirements, and implementation principles is imperative during the creation of the foundation deed and charter.

Although decisions made by a foundation's governing bodies do not directly constitute administrative acts, they produce binding consequences for the foundation's internal order. However, the legality of these decisions can sometimes be a subject of dispute. Should the management make a decision contrary to law, a request for annulment is directed to the general courts, and the judicial process must be rigorously followed. Judicial practice contains numerous rulings annulling unlawful or arbitrary actions by foundation administrators.

Real estate acquisition or disposition transactions carried out on behalf of a foundation are conducted in accordance with the Civil Code and land registry legislation, and must be handled with care due to their implications for the foundation's assets. In real estate transactions, the submission of documents proving the foundation's ownership and resolutions of the board of directors is mandatory. As additional permits or court orders may be required in some cases, the process can often become complex.

The issue of restituting former foundation real estate, which has passed into state administration, to the original foundation based on historical foundation records, continues to be significant today. In such lawsuits, both historical documents and administrative archive records are examined, the nature of the property as a foundation asset is investigated by the judge, and a judgment is rendered accordingly.

Claims related to *evladiye* (hereditary entitlements) arise when the beneficiaries of a foundation demand their shares payable according to the foundation deed. In such cases, it is necessary to calculate incomes, examine accounting records, and determine whether the distribution complies with the law. Disputes concerning *galle fazlası* (surplus income) similarly relate to whether foundation revenues have been correctly transferred to the rightful beneficiaries, and are among the frequently encountered conflicts, particularly in unsupervised or older foundations.

All contracts entered into by foundations must be consistent with the foundation's purpose and include provisions protecting its interests. Particularly, the accurate structuring of obligations within lease, operational, construction, or cooperation agreements is a fundamental element in preventing future litigation. Therefore, pre-contractual legal reviews are of vital importance in forestalling potential disputes.

Regarding permits required from various administrative bodies within the scope of foundation activities, it is essential that petitions are prepared with proper legal grounds and that processes are meticulously followed. Delays in permit procedures or erroneous applications can lead to the foundation facing administrative sanctions. Therefore, it is mandatory to act in compliance with legislation from the outset of foundation activities.

Lawsuits initiated concerning the establishment, operation, and dissolution of foundations produce not only legal but also societal consequences. Activities outside the scope of purpose, management breaches, or unlawful dispositions of assets are among the primary subjects of these lawsuits. In this context, requests for the removal of foundation managements, the dissolution of the foundation, or the annulment of asset-related transactions are meticulously evaluated by the courts, and the outcomes are determined by reasoned judgments.

Legal services provided in the law of foundations extend across a broad area of expertise encompassing contract drafting, dispute resolution, document preparation, and litigation processes. Particularly in historical cases such as those involving *galle fazlası* (surplus income) and *evladiye* (hereditary entitlements), reading past records, examining the historical development of the foundation, and tracing ownership from past to present require specialized knowledge. Therefore, it is crucial for individuals offering legal support concerning foundations to comprehend both positive law rules and the historical background of the institution.

Considering the technical structure, historical fabric, and extensive body of jurisprudence in the law of foundations, resolving disputes in this field demands significant expertise. The purpose of the legislation is to protect foundation assets and safeguard public welfare. Consequently, preventing potential loss of rights in foundation transactions depends on the careful interpretation of both statutory provisions and established judicial precedents. Court decisions serve as guidance not only for the specific dispute at hand but also for future transactions. Therefore, obtaining professional legal assistance in foundation matters is a mandatory requirement for both mitigating existing risks and preventing future problems.

Articles on Foundation Law