In the incident, which was the subject of the Supreme Court decision, the legal problem was caused by the judicial authorities interpreting the importance and function of “minimum and sufficient income agricultural land size” and “agricultural integrity” in the entitlement and use of right of agricultural preemption differently. 

It should be noted that the size of the minimum and sufficient income agricultural land is the criteria that agricultural lands cannot be divided and shared under the determined rates. In other words, it is related to whether agricultural lands can be transferred under the minimum and sufficient income size ratios specified in the law. Therefore, when the sale of agricultural land meets the minimum and sufficient income size ratios, there is no obstacle to the use of the right of agricultural preemption by the boundary owner or the boundary owners. In this context, “… it is aimed to combine the agricultural lands under the amount determined by giving the Lawmaker priority to purchase, with the neighboring parcels, reaching the minimum agricultural land size, if the parcels below the smallest agricultural parcel size are subject to sale…” as stated in the majority decision of the Supreme Court. It is not possible to agree with this justification because there is no such restriction in the text of the law, in the justification or in the relevant regulation regarding the use of the right of agricultural preemption. As a matter of fact, the purpose of the agricultural preemption right as we agree in said decision was expressed as “… The restrictions introduced by the Law No. 6537 bring important restrictions to the disposition authority, which is one of the powers of the owner, with these restrictions, it is aimed to prevent the division of agricultural areas and increase agricultural yields.”. The majority decision of the Supreme Court that the right to agricultural preemption can only be used if the sale of agricultural land below the minimum and sufficient agricultural land size is incompatible with the purpose and spirit of the law. This is because the limitations imposed in the law on the minimum and sufficient income agricultural land sizes refer to the lower limits of the plots resulting from the division of agricultural lands, not the lower or upper boundaries where the right of agricultural preemption can be exercised. In other words, the resulting parcels of agricultural land subject to division cannot be below the minimum and sufficient income rates specified in the law. Therefore, as stated in the majority decision of the Supreme Court, the right of agricultural preemption can be used both in agricultural land sales below the minimum and sufficient income agricultural land size and in agricultural land sales above the minimum and sufficient income agricultural land size, as stated in the decision of the District Court of Justice.

“…The essence of the right to property should not be harmed in the interpretation and application of the provisions of the law on the right to preemption, which restricts the property right on the immovable property. Accepting that the neighboring agricultural landowner can exercise the right of pre-emption for each agricultural land sold, regardless of its size, prevents the owner of agricultural land with the minimum agricultural land size to be transferred to the person requested by the owner over his real value. Such an application means that the restriction on the transfer of ownership is extended to against the core of the property right…”, stated in the majority decision of the Supreme Court is not a justification in which we can agree because the right to agricultural preemption granted to border owners does not directly restrict the disposition authority of the owner. There is an indirect restriction. As a matter of fact that, within the framework of the freedom of contract, the owner has the right and opportunity to sell his agricultural land at any time to the person he wants at the price he agreed. When the sale process takes place, the boundary owner gains the right to obtain the agricultural land in question preemptively within the framework of the conditions agreed with the third party all the time. Therefore, an action that harms the essence of the right to property is not a loss occurred by the owner in this context since there is no interference with whom the agricultural land will be sold for and for which price.

It is not possible to accept the justification stated in the majority decision that “… When the law is taken into consideration as a whole, the Lawmaker does not aim to enlarge the agricultural land in an unlimited and borderless manner...”. This is because the Lawmaker does not give agricultural preemption right to the border owners to combine the lands under the minimum and sufficient income agricultural lands, but to prevent this situation that negatively affects agricultural production and economic efficiency as agricultural land continues to shrink by sale and inheritance. In order to realize this aim, it has regulated the minimum and sufficient income agricultural land sizes (division limits) to express the smallest plots on which agricultural lands can be divided and aimed to increase agricultural productivity by preventing division and shrinkage in this way. On the other hand, considering the realities of our country, it is also a separate reality that when the right of preemption is used in agricultural lands over minimum and sufficient incomes, this will not cause unlimited and borderless agricultural lands.

Another point that needs to be criticized in the Supreme Court decision is the statement that “… Even if the quality of the immovable property purchased by the defendant has not been determined by the expert report resulted from the court’s discovery…”. One of the conditions of the birth of the right to agricultural preemption is that the land subject to preemption and the land that granted the right to preemption have the nature of “agricultural land”. If the land subject to the sale of the preemptive land lacks qualifications suitable for agricultural activities, the right to agricultural preemptive will not arise. Therefore, if there is a hesitation about the agricultural nature of the land subject to sale (for example, the property of the immovable property is raw soil, a garden with storage, a house with a garden, a field with a house, etc.), on-site discovery should be made by the court, when necessary, to the opinion of the provincial/district Directorate of Agriculture and Forestry.

As a result, minimum and sufficient income agricultural land size amounts are the legal restrictions imposed to express the minimum amount that agricultural land can be divided. According to this, agricultural lands cannot be divided, shared, and the number of shares and stakeholders cannot be increased below the said amount. Therefore, the size ratios regulated in the law should not be considered as the upper or lower boundaries in which the right to agricultural preemption can be exercised. Agricultural preemption right can be used for agricultural land sales both above and below the mentioned amounts.