Fiduciary transfer of real properties

Fiduciary transactions are legal transactions, which owe their existence to economic needs. Under the fiduciary transfer of real properties, settlor transfers a real property to fiduciary for the purpose of security or management. Fiduciary is under the obligation to retransfer the title, when the parties achieve their purposes or with the discharge of the contract. These transactions are named fiduciary, since the settlor has only a personal right to claim the transfer of the property to himself. Fiduciary transactions are composed of a fiduciary agreement and an act of alienation. Since the fiduciary agreement is a contract sui generis, it is necessary to explain the situation of the fiduciary transactions as compared with similar legal transactions and institutions. In this context, the mixed fiduciary transactions should be differentiated from mortgage and the pure fiduciary transactions should be differentiated from contracts of mandate, especially from agency relationships. Since the economic needs that are satisfied by the fiduciary transactions are important, especially in the field of immovables, the risk of voidness of these transactions should be eliminated. For this purpose, firstly, it should be accepted that the fiduciary agreement is the causa sui generis of the act of alienation. The possible causes of voidness such as the breach of form requirements and simulation, which are the results of land registry practice in Turkey that does not qualify fiduciary agreements as a valid causa, should be eliminated with the help of the rule ?falsa demonstration non nocet?. The protection of settlor against the third persons, especially against the creditors of fiduciary, is one of the most important problems to deal with in the field of fiduciary transactions. The theories, which claim to empower the fiduciary with a real right in all cases, are unacceptable, since they damage the fiduciary nature of these transactions. Therefore, the best option is to provide a legal provision, which affords parties the opportunity to annotate the right of the settlor to the land registry. This will be an important step towards the recognition of trust, which is a legal institution created by Common Law system, and practice of which has already become widespread in international field. Keywords 1) Real property 2) Fiduciary transaction 3) Fiduciary agreement 4) Protection of the settlor 5) Trust