Collective pledge on immovable properties in Turkish law

The right of pledge can be effective against third parties only if this right is established on an existing and individualized property. This situation is expressed as the principle of definiteness in the immovable pledge. Pursuant to this principle, the immovable subject to the guarantee must be determined both when making a pledge agreement and at the registration stage. However, the principle of definiteness does not require that the subject of the guarantee be only one object. In our law, in Turkish Civil Code Art. 855, it is possible to pledge more than one immovable in order to obtain the same receivable. According to this provision, there are two cases where the subject of the guarantee is more than one immovable. In the first, the burden of the pledge is distributed to each of the immovables, and in the second, each of the immovables secures the entire claim. The second of these situations is the collective pledge, which is the subject of our study. The regulation of such a pledge type is based on the objectives of ensuring that both the borrower finds a loan more easily and the creditor has a stronger collateral in terms of high-volume loans. The legislator foresees the collective pledge as an exception to the multiple pledge. The reason why the collective pledge is an exception to the multiple pledge is that this guarantee can only be established in the presence of certain prerequisites. According to the Art. 855/1, a collective pledge can be established if the immovables belong to the same owner or to persons who are jointly responsible for the debt subject to the guarantee. Even in the presence of these conditions, it is not obligatory to establish a collective pledge, and the parties to the pledge relationship must agree on this issue. In case the immovables belong to the same owner, the immovables subject to the guarantee may belong to the debtor or to third parties. For the collective pledge of immovables belonging to different owners, these persons must be persons who are jointly and severally liable for the debt. Although there is more than one pledge subject in a collective pledge, it should be accepted that there is only one right of pledge belonging to the creditor. Because, if the creditor is satisfied with the sale of one of the immovables, the other immovables are relieved of the burden, thus achieving this result. In Art. 873 TCC is stipulated that the creditor must make the request for sale in terms of all immovables. Therefore, the creditor does not have the authority to choose immovables to be saled. In addition, this point shows that the creditor has only one right of pledge, regardless of the number of immovables subject to the guarantee. In this study, the meaning, characteristics and effect of the collective pledge are examined, the provisions are discussed in terms of the debtor, the creditor and the immovables subject to the guarantee, and the stage of foreclosure is examined together with similar regulations and practices.