Ayşe Ozil PDF

Whose Property Is It?
The State, Non-Muslim Communities, and the Question of

Property Ownership from the Late Ottoman Empire through the Turkish Nation State
Author(s): Ayşe Ozil
Source: Journal of the Ottoman and Turkish Studies Association , Vol. 6, No. 1,
Ceremonies, Festivals, and Rituals in the Ottoman World (Spring 2019), pp. 211-235
Published by: Indiana University Press
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Whose Property Is It? The State, Non-Muslim
Communities, and the Question of Property
Ownership from the Late Ottoman Empire
through the Turkish Nation State
Ayşe Ozil
Abstract: This article traces the long trajectory of non-Muslim corporate status and
communal property ownership from the late Ottoman Empire into the Turkish nation
state. It examines how non-Muslim communal property ownership has been an issue
in the lands of Turkey. The principal focus of this investigation is on the question
of secularization, more specifically on the ways in which a modernizing state and
society rethinks the status of religious communities at law and in practice. The arti-
cle argues that legal ambiguity and practical uncertainty has been a persistent and
common feature of non-Muslim communal property ownership from the late empire
to the republic. A good example of this ambiguity is the non-Muslim position in the
vakıf (charitable foundation) framework. Contesting one of the main assumptions of
existing studies which projects the contemporary situation into the past, this exam-
ination demonstrates how non-Muslim communal institutions of the empire were not
commonly designated as vakıf—on a legal and institutional level. The article shows
the varied ways in which non-Muslim communities have held property. Further, in
historicizing secularization, this essay investigates how the Turkish nation state grad-
ually articulated a vakıf framework for them under state control, which began to take
effect in the second half of the twentieth century. The examination is based on a com-
parative analysis of state and communal documentation.
Introduction
On 23 March 2012, the Greek community school in Istanbul’s Galata neigh-
borhood made the headlines in one of the liberal Turkish dailies. “The First
Title-Deed” announced the article and explained, “State officials handed to the
trustees of the Galata school the first title-deed of confiscated property.”1 With
this transaction, the legal ownership of the school building was transferred
1. “ . . . Devlet el koyduğu mallardan ilkinin tapusunu dün vakıf yetkililerine teslim etti . . . ,”
Radikal, 23 March 2012.
Journal of the Ottoman and Turkish Studies Association, Vol. 6, No. 1, pp. 211–235
Copyright © 2019 Ottoman and Turkish Studies Association. doi:10.2979/jottturstuass.6.1.12
193.140.109.37 on Wed, 29 Mar 2023 08:49:57 UTC
212 Journal of the Ottoman and Turkish Studies Association, Vol. 6.1
from the state treasury to the vakıf (charitable foundation) of the school and
registered under the latter. This meant that the charitable foundation was from
then on the official and legally recognized owner of this property, one among
many properties that belonged to Greek communal institutions in the neigh-
borhood of Galata and throughout the city.
When the reporters typed “the first title-deed” as the headline of the report,
they were not only referring to the fact that it was the first deed returned out of
a number of similar authentications of ownership associated with the school
but attributed to the state. More importantly and the reason why this was
worth printing in the national media was that the transaction marked one of the
first instances in which a title-deed of non-Muslim communal property was
returned to its owners. Confiscation of such property or of title-deeds by the
state has been a common practice particularly in the second half of the twen-
tieth century,2 and this recent restitution came as a result of a series of legal
reforms introduced in the early 2000s, which ultimately highlighted some of
the fundamental questions about the trajectory of communal corporate status
in Turkey.
With regard to communal corporate status, the news article in fact touched
upon a much thornier and more multi-faceted issue than what is implied any-
where in the piece. What was handed to the trustees on 23 March 2012 was
the first proper title-deed of the school, registered in the name of its vakıf as
a legal entity. Formerly, the property was registered in the name of the state
treasury (with the confiscation of its legal entitlement) and before that, in the
name of Eleni Zarifi, a prominent benefactor of the Greek community in the
late Ottoman period and a real person who could own property in the eyes of
the law, since the school was not a vakıf at that time.3
Registration of non-Muslim communal property in the name of their
respective institutions has not been a regular practice in Turkey, either under
the Ottoman Empire or during the republican era after 1923. This article traces
the diverse ways in which communal property has been held, managed, and
questioned from the late Ottoman Empire to the nation state. Combining state
2. For the confiscations that took place in the twentieth century, see Dilek Kurban and
Kezban Hatemi, Bir ‘Yabancı’laştırma Hikayesi: Türkiye’de Gayrimüslim Cemaatlerin Vakıf
ve Taşınmaz Mülkiyet Sorunu (Istanbul: TESEV, 2009); 2012 Beyannamesi: İstanbul Ermeni
Vakıflarının El Konan Mülkleri, ed. Mehmet Polatel, et al. (Istanbul: Hrant Dink Vakfı, 2012).
3. Archives of the Galata Greek School, title-deed (former), pafta 115/ada 124/parsel 25;
title-deed (current), 22 March 2012. In the summer of 2012 when the archives of the school
were opened and catalogued, the vakıf administration reported that until the legal intervention of
the state in 1964, the property was registered in the name of Mrs. Zarifi. Also see, Savvas Tsile-
nis, “Galata Rum Okulu: Bir İstanbul Rum Cemaat Okulu Binasının Kısa Tarihçesi,” Toplumsal
Tarih 266 (2016): 37–38.

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Ozil / Whose Property Is It?
213
and communal archival sources, it specifies and documents the relationship of

property ownership to regulations and practices of legal corporate status. In
exploring modes of nationalism and complicating policies of secularization,4
this is an attempt to understand how a modernizing state rethinks and keeps
rethinking about the status of religious communities at law and in practice.
Today, non-Muslim communal institutions in Turkey can possess legal cor-
porate status only within the vakıf framework. Accordingly, all community-held
Greek and Armenian institutions either constitute a vakıf or belong to a larger
vakıf which covers a series of religious, educational, or philanthropic institu-
tions.5 From the perspective of the law there are currently no churches in Tur-
key, but only church vakıfs. Likewise, schools and philanthropic associations
legally and financially belong to a vakıf. In fact, non-Muslim institutions are
now bound to the official vakıf framework in such a way that their presence
can hardly be conceived outside this framework. Yet, this has not always been
the case. Well into the twentieth century vakıf status was an exception for
non-Muslim institutions.6
While scholarship has traced the historical development of non-Muslim
communal property ownership from the late empire through the nation state,
there have been some misleading assumptions about the nature of corporate
status.7 Treating legal corporate status and vakıf in an undifferentiated way and
identifying the vakıf framework which is a highly specific legal structure with
a generic understanding of a religious, educational, or philanthropic institution
has often stood in the way of a thorough examination of communal property
ownership. This shortcoming may partly be the result of projecting the current
4. Wealth transfer from non-Muslims to Muslims has been a significant part of nationalist
policies in relation to property. For various modes of wealth transfer, see Ayhan Aktar, Varlık
Vergisi ve Türkleştirme Politikaları (Istanbul: İletişim, 2000); Rıfat Bali, 1934 Trakya Olayları
(Istanbul: İletişim, 2008); Nevzat Onaran, Emval-i Metruke Olayı (Istanbul: Belge Yayınları,
2010); Taner Akçam and Ümit Kurt, Kanunların Ruhu (Istanbul: İletişim, 2012); among others.
See also fn. 8.
5. This article focuses on Christian—Greek and Armenian—properties and does not deal
with Jewish property. It also focuses on Istanbul only, since the minority experience has mostly
and increasingly been confined to this city following the establishment of the republic in 1923.
6. Christian vakıfs were not a widespread practice in the Ottoman Empire, as noted by
Meropi Anastassiadou and Paul Dumont, Oi Romioi tis Polis (Athens, Estia, 2007), 278–79.
7. A recent inventory of Armenian communal property (2012 Beyannamesi) starts out with
an introduction that singles out the vakıf framework for its examination of communal property
ownership beginning from the Ottoman period. Also see Konstantinos Tsitselikis, Ta Vakoufia
ton Ellinorthodokson Koinotiton ston Europaïko dromo tis Tourkias (Athens: Bibliorama, 2011)
which specifies the vakıf framework of the republican period (p. 37) as an extension of the Otto-
man vakıf, 43–47. Also see Nazif Öztürk, Azınlık Vakıfları (Ankara: Altınküre, 2003); among
others.

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situation into the past, which in some ways was very similar, but in others very
different. The present examination aims to delineate the historical trajectory,
focusing on legal corporate status and vakıf, both separately and through their
relationship, and follows on the transformation in the late Ottoman Empire and
the various stages in republican Turkey.
This article situates the above discussion within the context of seculariza-
tion. It aims to offer new insights into a critical literature on secularization in
republican Turkey which shows state control of religion and the ways in which
administrative frameworks have managed religion.8 The article will steer the
discussion of secularization away from its usual focus on Muslim commu-
nities and explore the ways in which secular practices can be formulated in
relation to the non-Muslim, or the minority, experience. Since minority status
is identified with religion in the Ottoman-Turkish framework, the non-Muslim
experience becomes a litmus test for the complex processes of secularization.
Particularly, the novel categorization of non-Muslim institutions as vakıf in
republican Turkey contests simple and straightforward characterizations of
secularization and conversely compels us to look into the transformations in
the practice of vakıf.9
In exploring the intricate workings of corporate status and its relationship
to property ownership from the late empire through the republic, this essay
will demonstrate that there was legal ambiguity with respect to non-Muslim
communal presence. In this way, the examination aims to contribute to a line
in urban studies which argues that official fragility and legal uncertainty has
been a common feature of property regimes in post-Ottoman territories, and in
turn the article connects to scholarship on various forms of urban informalities
on the Global South.10 As scholars of urban studies have shown, keeping legal
8. See Andrew Davison, Secularism and Revivalism in Turkey (New Haven: Yale
University, Press, 1998); Umut Azak, Islam and Secularism in Turkey (London: I.B. Tauris,
2010); Amit Bein, Ottoman Ulema, Turkish Republic: Agents of Change and Guardians of Tra-
dition (Stanford: Stanford University Press, 2011), esp. ch. 6; among others.
9. For recent scholarship on the changing nature and the development of vakıfs, see Gizem
Zencirci, “From Property to Civil Society: The Historical Transformation of Vakıfs in Modern
Turkey (1923–2013),” International Journal of Middle East Studies 47, no. 3 (2015): 533–54.
10. For example, see Robert Home, “An ‘Irreversible Conquest’? Colonial and Post-
colonial Land Law in Israel/Palestine,” Social and Legal Studies 12, no. 3 (2003): 291–310;
Neslihan Demirtaş-Milz, “The Regime of Informality in Neoliberal Times in Turkey: The
Case of the Kadifekale Urban Transformation Project,” International Journal of Urban and
Regional Research 37, no. 2 (2013): 689–714; Tuna Kuyucu, “Law, Property and Ambiguity:
The Uses and Abuses of Legal Ambiguity in Remaking Istanbul’s Informal Settlements,” Inter-
national Journal of Urban and Regional Research 38, no. 2 (2014): 609–27; Mona Fawaz,
“Exceptions and the Actually Existing Practice of Planning: Beirut (Lebanon) as Case Study,”
Urban Studies 54, no. 8 (2017): 1938–55. For the Global South, for example, see Kah-Wee Lee,

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215
property regimes ambiguous has often been an intended policy rather than
bureaucratic mismanagement and has made it possible for various powerful
groups to manipulate property development and confiscation.11 The case of
non-Muslims in Turkey largely follows this line with the state administration
acting as a major agent, yet it also demonstrates more complex consequences
whereby individual members of non-Muslim communities having adminis-
trative roles within the community have benefited from the uncertainties sur-
rounding legal corporate status of communal institutions.12 The example of
Turkey also shows that legal ambiguities practically began with modernization
in the late Ottoman Empire. They have then been bequeathed to and trans-
formed under the nation state.
Legal Corporate Identity and the Vakıf: a Historical Background

Before the nineteenth century, it was usually publicly and orally known that
a church or another communal institution belonged to a particular Christian
group or was used by them.13 Some others were granted use of land by imperial
orders, but this was not a consistent or common policy.14 The legal relationship
“Transforming Macau: Planning as Institutionalized Informality and the Spatial Dynamics of

Hypercompetition,” Environment and Planning A 46, no. 11 (2014): 2622–37; Salo V. Coslovsky,
“Beyond Bureaucracy: How Prosecutors and Public Defenders Enforce Urban Planning Laws
in Sao Paulo, Brazil,” International Journal of Urban and Regional Research 39, no. 6 (2015):
1103–19.
11. For example, see Yıldız Atasoy, “Repossession, Re-informalization and Dispossession:
The ‘Muddy Terrain’ of Land Commodification in Turkey,” Journal of Agrarian Change 17,
no. 4 (2017): 659. For a wider discussion, for example, see Jesse C. Ribot and Nancy Lee
Peluso, “A Theory of Access,” Rural Sociology 68, no. 2 (2003): 153–81.
12. This article will concentrate on the relationship between the state and communities and
will not include cross-cutting actors. For an examination of the latter in other contexts, see
Dimitris Stamatopoulos, “O Nomos tou Millet: o Rolos tou Diarkous Ethnikou Miktou Sym-
bouliou sti Diacheirisi ton ‘ulikon’ upotheseon tou Oikoumenikou Patriarcheiou (1860–1922),”
Conference Proceedings, To Oikoumeniko Patriarcheio kai i Oikonomia tou Genous (Athens:
Adelfotis Offiliakon tou Oikoumenikou Patriarcheiou ‘Panagia i Pammakaristos’), 135–54;
Ithamar Katz and Ruth Kark, “The Greek Orthodox Patriarchate of Jerusalem and Its Congrega-
tion: Dissent over Real Estate,” International Journal of Middle East Studies 37, no. 4 (2005):
509–34.
13. In the early modern period, oral granting of a vakıf was also acceptable and not unusual,
Amy Singer, Constructing Ottoman Beneficence: An Imperial Soup Kitchen in Jerusalem (New
York: SUNY Press, 2002), 21; Hüseyin Hatemi, Önceki ve Bugünkü Türk Hukuku’nda Vakıf
Kurma Muamelesi (Istanbul: İstanbul Üniversitesi Yayınları, 1969), quoted in 2012 Beyan-
namesi, 30; Anastassiadou and Dumont, Oi Romioi tis Polis, 274.
14. For the allocation of a cemetery to the Jews of Hasköy on 3 November 1582, see the
imperial order in Ahmet Refik Altınay, Onuncu Asr-ı Hicride İstanbul Hayatı (Collected Docu-
ments) (Ankara: Kültür Bakanlığı, 2000), 91.

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of the Ottoman state with these entities was not tied to an exclusionary, written
statement that was generally acknowledged to have legal force as has been
more common in modern times.15
While the diverse framework which accommodated non-Muslim institu-
tions did not entirely exclude vakıfs, these were structurally and legally not
vakıf, and certainly not in the way in which they would later become in the
twentieth century, i.e., a Christian vakıf in the form of a charitable institution
with legal corporate status. For Christians there were two main frameworks at
this time with reference to a vakıf. A monastery could be designated as a family
vakıf and/or some of its landed properties (but not its institution) could have
vakıf status.
Regarding the introduction of monasteries as family vakıfs, it was a series
of interventions by Selim II (r. 1566–74) to confiscate monastic land that ulti-
mately led Ebussuud (1490–1574), the renowned jurist who served various
powerful and illustrious sultans in the sixteenth century, to design a legal
scheme to accommodate Christian communal structures.16 Ebussuud, how-
ever, did not recognize a monastery as a vakıf if it served the wider Christian
community, i.e., if it was directly engaged in furthering the cause of Christian-
ity (rather than acting for philanthropic or infrastructural reasons such as feed-
ing the poor or opening fountains).17 The former was exactly what a monastery
was ultimately for, in other words Christianity was the raison d’être of a mon-
astery and one of the key motives behind the confiscation attempts. Ebussuud
did not create a category as monastery-vakıf, i.e., Christian vakıf per se, but
recognized monasteries in terms of one of the existing suitable categories. He
claimed that the monks could be thought of as a family, hence the creation of
the monastery as a family vakıf.18 To be classified as a family vakıf meant that
15. The title-deed as we know it today, not only in relation to communal institutions but
broadly understood, emerged gradually in the eighteenth century and became relatively more
standardized after the 1858 Land Code, Anton Minkov, “Ottoman Tapu Title Deeds in the
Eighteenth and Nineteenth Centuries: Origin, Typology and Diplomatics,” Islamic Law and
Society 7, no. 1 (2000).
16. Monasteries were central to social and economic life in much of the Balkans and the
Aegean and a major source of tax revenue for the Ottoman administration.
17. Eugenia Kermeli, “Ebus Suud’s Definitions of Church vakfs: Theory and Practice in
Ottoman Law,” in Islamic Law: Theory and Practice, ed. Robert Gleave and Eugenia Kermeli
(London: I.B. Tauris, 1997), 147–48. In practice, it could be difficult to specify and maintain
this differentiation, Richard van Leeuwen, “Monastic Estates and Agricultural Transformation
in Mount Lebanon in the 18th Century,” International Journal of Middle East Studies 23, no. 4
(1991): 604.
18. Kermeli, “Ebus Suud’s Definitions,” 148–51.

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217
immovable property would not be bequeathed to the relatives of individual

monks, or revert to the treasury, but would remain in the monasteries.19
As a second category, monastic lands (but not the institution of the mon-
astery) could be classified as vakıf. When monasteries received donations of
land and other immovable properties, the latter were recorded in the Sharia
courts as vakıf.20 Even in such cases, there were limits to recognition as vakıf.
Extant properties of a monastery were not transferred to vakıf status and not all
donations were recorded as vakıf, either.
While our knowledge of this early phase is based only on a handful of
studies, evidence suggests that the vakıf framework was at best a limited, spe-
cial arrangement for Christians,21 and that most of the communal institutions
continued to operate without this status, or had hybrid forms of ownership.22 In
other words, the vakıf framework did not normally extend to non-Muslims and
there was no wholesale conversion of Christian institutions, such as churches,
into vakıf status in the sixteenth century or later.23
Non-Muslim Communal Institutions and Their Properties

in the Late Empire
As imperial borders contracted in the nineteenth century, the Ottoman
control of prominent, wealth-producing, and major tax-paying monasteries
on the Aegean islands and in the Balkans was challenged. This development
19. Eugenia Kermeli, “Central Administration versus Provincial Arbitrary Governance:

Patmos and Mount Athos Monasteries in the 16th century,” Byzantine and Modern Greek
Studies 32, no. 2 (2008): 194.
20. Ron Shaham, “Christian and Jewish ‘waqf’ in Palestine during the Late Ottoman Period,”
Bulletin of the School of Oriental and African Studies 54, no. 3 (1991); Sabine Mohasseb Saliba,
ed., Les fondations pieuses waqfs chez les chrétiens et les juifs: du moyen âge à nos jours (Paris:
Geuthner, 2016), Part ii: “Formes, normes et usages du waqf dans l’islam medieval.”
21. Kermeli, “Central Administration,” 193. For the mid-nineteenth century the Constan-
tinopolitan scholar Vyzantios lists nine monasteries with vakıf status. Skarlatos Vyzantios,
I Konstantinoupolis (Athens: Andreas Koromilas, 1851), i, 505.
22. For hybrid forms, see the monastery of Varlaam in the Meteora complex, or the monas-
tery of Leimon on the island of Lesvos, Elias Kolovos, “Christian Vakıfs of Monasteries in the
Ottoman Greek Lands from the Fourteenth to Eighteenth Centuries,” in Les fondations pieuses
waqfs.
23. Ebulula Mardin singles out the monastery as an institution with characteristics clos-
est to legal corporate status which had authority to manage its age-old lands, Ebulula Mardin,
Toprak Hukuku Dersleri (Istanbul: Stad Matbaası, n.d.), 42–43. The monastery would later be
codified separately in the 1858 Land Code, without reference to churches and other communal
institutions, “Arazi Kanunnamesi,” Düstur, 1. Tertib, i, 1, Article 122. A survey in the archives
of DGF (see below about this institution), though not exhaustive, has located only thirty-one
non-Muslim (Greek and Armenian except for one Jewish) vakıfs between 1728 and 1912.

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coincided with the increasing role and significance of urban wealth in Ottoman
society and economy. A prominent aspect of the change in the urban sphere
was the emergence of new forms of institutions, embodied mostly in the mod-
ern church, the school for mass education, and the philanthropic association.
Central to this development were the buildings of these institutions, which
came into existence in new urban centers (e.g., Izmir) or within the reorgani-
zation of older ones (e.g., Istanbul). Existing churches began to be restructured
in modern forms and complete new ones were built. These constructions were
highly visible with their newly designed domes, bell towers, and conspicuous
ornamentation. Churches became more durable as stone-and-brick structures,
particularly in Istanbul, replaced the wooden ones long prone to frequent fires.
School buildings were not modest either. As a novel institution, the secondary
school for mass education emerged as particularly compelling in grandeur,
while the development of both the modernizing church and the school was
bolstered by the accompanying associations of culture and philanthropy.24
These institutions and their buildings represented the new urban landed
wealth, particularly among Greeks and Armenians, and signified the rise of a
middle class of professionals who engaged in secularizing practices; this class
gradually replaced if not entirely outdid the religious administration.25 In the
face of these developments, Ottoman authorities devised ways to tax urban
wealth as well as to control non-Muslim empowerment and check the devel-
opment of any non-state, particularly communal authority.
The late nineteenth-century remodeled Ministry of Justice and Religious
Denominations (Adliye ve Mezahib Nezareti) monitored the official operations
of these institutions and their buildings. The main bulk of the documentation
produced by the ministry relating to these institutions in the late nineteenth
and early twentieth centuries was in the form of permissions registered for the
construction, reconstruction, and repair of communal buildings.26 These per-
missions included information about the proportions of the buildings, where
Further, only one of them had been established with a ferman, Nazif Öztürk, Türk Yenileşme
Tarihi Çerçevesinde Vakıf Müessesesi (Ankara: Diyanet Vakfı, 1995), 336–37.
24. For philanthropy, see Efi Kanner, Phtoheia kai Philanthropia stin Orthodoksi Koinotita
tis Konstantinoupolis 1753–1912 (Athens: Katarti, 2004); for architecture, see Vasilis Colonas,
Greek Architects in the Ottoman Empire, 19th–20th centuries (Athens: Olkos, 2005).
25. Haris Exertzoglou, Ethniki Tautotita stin Konstantinoupoli ton 19o ai.: O Ellinikos
Philologikos Syllogos Konstantinoupoleos (Athens: Nefeli, 1996).
26. These are the irade collections, mostly but not exclusively produced by Adliye ve
Mezahib Nezareti (İ.AZN), Ministry of Justice and Religious Denominations. For example, see
the construction of the Church of Agia Triada in Kadıköy, İ.RSM 15, 27/Z/1323 (22 Feb. 1906);
the construction of a school house in the courtyard of the Church of Panagia in Balat or the
construction of a soup kitchen in the courtyard of the Church of Agia Triada in Taksim, İ.AZN
11/S/1323 (17 April 1905); the repair of the Church of Agia Paraskevi in Büyükdere, İ.AZN

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219
the latter were situated (along with whether there was a substantial number of
people of that particular religion in the area to use the buildings), their donors,
and tax status. Permissions, however, did not specify or reveal anything about
the legal status of the institutions or their buildings. Nor did they provide any
information about their title-deeds or legal owners. Likewise, there was no
mention of their having vakıf status. The only occasional reference to a vakıf
is to a sultanic one, in cases where the tax revenues collected from the landed
property on which the building stood were channeled to a Muslim vakıf, estab-
lished for charitable purposes by one of the sultans. This provides an indica-
tion that the immovable property in question was not part of a communal vakıf.
On a wider level, as a result of the centralizing policies of the state, there
was a drive for a more standardized and more closely monitored vakıf system.
This was to a large extent mirrored in the establishment, in 1826, of a ministry
in charge of vakıfs.27 The Ministry of Charitable Foundations (Evkaf Neza-
reti) dealt with Muslim institutions, since officially and normally, vakıf was
a Muslim institution. The reorganization, therefore, left extensive networks
of churches, schools, and philanthropic institutions belonging to Greeks and
Armenians as legally uncharted territory.
Simultaneously, from the mid-nineteenth century onwards, non-Muslim
communal administrative councils of each neighborhood or region got consol-
idated and assumed a more systematic role in the management of the immov-
able assets of their communities. In practice, this resembled the system of
trusteeship of Muslim vakıfs,28 but communal administrative councils did not
have legal status. Therefore, while individuals, i.e., trustees, played a crucial
role in the management of Muslim properties as vakıf, this agency was all
the more critical for non-Muslim institutions, because in the absence of the
vakıf framework or some form of legal corporate identity, most non-Muslim
institutional property was under the control of, and dependent on the whims of,
individuals who acted as unofficial trustees.29
The Nineteenth-Century Transformation in Corporate Law

Against the background of communal institutional change, socio-economic
transformation, and state modernization, the Ottoman nineteenth century
was a period of reorganization in the legal parameters of property ownership.
16, 19/Ra/1314 (28 Aug. 1896). For the provinces, see, for example, the reconstruction of the
Church of Taksiarhis in the village of Bergos of Mudanya, İ.AZN 8/S/1312 (11 Aug. 1894).
27. Öztürk, Türk Yenileşme Tarihi Çerçevesinde Vakıf Müessesesi, 68ff.
28. Meropi Anastassiadou, “Ambigüités, opacités, contradictions. Les fondations pieuses
des non musulmans à Istanbul (XIXe–XXe s.),” in Les fondations pieuses waqfs, 286.
29. Ayşe Ozil, Orthodox Christians in the Late Ottoman Empire: A Study of Communal
Relations in Anatolia (London: Routledge, 2013), 78–80.

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Modern forms of property registration were seen to require exclusive and

clearly specified rights of ownership, and a new kind of accuracy with regard
to who owned what and how property was registered. Property now had to be
under absolute ownership; it was increasingly valued by state and society as
an end in itself, in addition to the formerly dominating attention on taxation.30
Yet this did not imply an immediate and wholesale transition to a new
system. Rather, the developments produced an ambiguous framework. As a
general policy, state authorities favored standardization, but were hesitant
to regulate legal corporate status. The second half of the nineteenth century
brought only a few indirect references to legal corporate identity, mainly in the
Land Code of 1858 and the Civil Code of 1877. These hinted at new defini-
tions that moved towards formulating an idea of a corporate entity per se, i.e.,
not tied to the vakıf framework or other types of collectivity. Yet at this stage
these definitions were narrowly defined and did not in any way constitute a
comprehensive acknowledgment of corporate rights on the part of communal
administrations and/or their institutions.
A more pressing issue was that because of the predominantly hybrid
nature of communal property ownership under the previous system, commu-
nal administrations could not prove ownership of property according to the
demands of the new system. Even in cases when communal administrations
possessed one-off papers, or initial permissions for construction, these did not
necessarily correspond to the then-existing borders of property after many cen-
turies involving sales and acquisitions.31 The transition itself and the require-
ment for written, exclusive registration highlighted the existing complexities
and created new ones.
30. Huri İslamoğlu, “Property as a Contested Domain: A Reevaluation of the Ottoman Land
Code of 1858,” in New Perspectives on Property and Land in the Middle East, ed. Roger Owen
(Cambridge, MA: Harvard Middle Eastern Monographs, 2000), 5–7, 24–26, 32–33; eadem,
“Politics of Administering Property: Law and Statistics in the 19th c. Ottoman Empire,” in
Constituting Modernity: Private Property in the East and West, ed. Huri İslamoğlu (London: I.B.
Tauris, 2004), 276–319. The drive for exclusive and individualized land ownership, whether it
was a result of state policy, demands by private owners or both, undermined customary common
rights on pastures; for such a land contestation in the Ayvalık region, see Yücel Terzibaşoğlu,
“Land Disputes and Ethno-politics: North-Western Anatolia 1877–1912,” in Land Rights, Eth-
no-Nationality, and Sovereignty in History, ed. Stanley Engerman and Jacob Metzer (London:
Routledge, 2004); for Ottoman Syria, see Martha Mundy and Richard Saumarez Smith, Govern-
ing Property, Making the Modern State: Law, Administration and Production in Ottoman Syria
(London: I.B. Tauris, 2007).
31. For a petition of the Patriarchate of Constantinople, see Y.PRK.AZN 23/77, 15/B/1321
(7 Oct. 1903). Difficulties of accurate documentation, in fact the absence of archives or problems
of access to documents is an ongoing issue today, “Bin Vakıf Mülkü Kaybolmasın,” Agos, 24
Aug. 2012; 2012 Beyannamesi, 22.

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221
Under these circumstances community administrations increasingly relied

on registration of property in the name of individuals, mostly community
elders, the clergy, landlords, or other notables. In 1879 in Beyoğlu, when the
Greek communal administration of the district gave a loan of eighty Ottoman
liras to a certain Eirini Makri, they held one of her houses and a workshop
against the loan. The administration registered this transaction in the name of
Georgios Konstantinidis, one of the notables of the community, on behalf of
the Greek Orthodox Church of Panagia out of whose funds the loan had been
given.32 In the city of Adana, sometime before August 1906, when the house of
Nikola Berberoğlu was sold to the Greek Orthodox administration of the town,
the registration was carried out in the name of Theodosios Simeonoğlu and
Habib Ağa Mihailidis who were among the notables of the area.33 While regis-
tration in the name of community leaders became common practice at the time,
in order to achieve a more secure and continuous form of ownership commu-
nal administrations also registered property in the names of religious figures
like Mary, Jesus, and the saints.34 These methods responded to demands for
singular and exclusive registration in the absence of legal corporate identity.35
Communal administrations, themselves, voiced that they were carrying out the
registrations in the name of individuals because their institutions did not have
corporate status.36
“The provisional law on the proprietorship of immovable property by legal
corporate entities,” promulgated in 1913, marked the first direct attempt to
32. Archives of the Istanbul Rum Communities (Anthemion), Stavrodromio, I Kentriki

Eforia tis en Stavrodromio Ellinikou Orthodoxou Koinotitos, no. 178, 30 July 1879.
33. Greek State Archives (Genika Archeia tou Kratous—GAK), Tameio Antalaksimon,
Codex no. 478, 11 Aug. 1906, 50. Likewise, see Tameio Antalaksimon, Codex no. 478, 6 March
1911, 62: ‘Adana’nın Han kurbu mahallesinde ve Posta Caddesi’nde nam-ı müstear olarak
Mihail oğlu Habib Ağa ve Kosma Efendi mahdumu Theodosios Efendi uhdelerinde mukayet
Rum milleti eklisiyasına aid arsa.’
34. For example, Maria, daughter of Joachim (Maryam bint-i Ovakim), owned a series of
properties that belonged to the Armenian Church of St. Mary in Yeniköy, document in İsmet
Sungurbey, Eski Vakıfların Yeni Sorunları (Istanbul: Maltepe Üniversitesi Hukuk Fakültesi,
2001), 350. There is much evidence from the late nineteenth and the turn of the twentieth cen-
turies with regard to registration of communal property in the name of real persons (nam-ı
müstear) and those of religious figures (nam-ı mevhum).
35. Although based on a restricted case study for Jaffa and Nazareth, a similar conjecture is
made for registration as a Christian vakıf in the absence of recognition of legal corporate status
and in the face of modern demands for a specific registration, Shaham, “Christian and Jewish
‘waqf’,” 467.
36. GAK, Tameio Antalaksimon, Codex no. 427, passim. Ozil, Orthodox Christians, 65,
77–78.

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regulate communal property ownership more systematically.37 The code stated

that communal properties attributed in writing to individuals and registered in
the imperial land registers could now be transferred to the name of the related
institutions. Immediately following the promulgation of the law, communal
authorities began to apply to the relevant state authorities to transfer the offi-
cial ownership of their property from persons to institutions.38
Yet, the new regulations introduced in 1913 were limited in scope. To
begin with, the provisions of the code were applicable only within towns
and villages, which excluded large amounts of land that the communities—
including those in urban areas—possessed in the countryside. Second, the
code was restricted to revenue-generating property, leaving the buildings of
communal institutions in legal limbo. Third, authorities stated deadlines for
the transfer of registration, which further restricted chances to register, as there
were large amounts of property scattered throughout the empire in a context of
poor communications.39
In 1913, following the promulgation of the law, the Greek communal
administration in Beyoğlu petitioned the Ottoman authorities to register an
apartment building and a number of stores adjacent to it in the name of the
church. When these properties were first built around twenty-five years prior
to the law code, they had been registered in the name of Eleni Zarifi, who also
was the official owner of the Galata school building that opened this article.
Administrators of the church now pressed for a name change because, they
claimed, as long as the property remained in the name of Mrs. Zarifi, related
parties might act as if the property belonged to her,40 creating complications for
the church, whose income drew on revenue generated by such property. The
petition for the correction of registration, however, did not yield the desired
result, which led to a new series of letters to the state authorities in 1925 after
37. “Eşhas-ı hükmiyenin emval-i gayr-i menkuleye tasarruflarına mahsus kanun-ı

muvakkat”, 1331 Ra 22 (1 March 1913), Düstur, 2. tertib, v, 114–5. Many studies inaccurately
assume that communities received legal corporate status with this law, confusing “community”
with property ownership and neglecting the restrictions of the law, see, for example, Ester
Zonana, “Cemaatlerin Tüzel Kişilikleri,” in Yok Hükmünde: Müslüman Olmayan Cemaatlerin
Tüzel Kişilik ve Temsil Sorunu [conference proceedings] (Istanbul: Hrant Dink Vakfı, 2016), 90.
38. For Armenian communities, see the Andonyan Armenian Catholic Monastery and
School in Ortaköy, 2012 Beyannamesi, 124. Even though its registration number is listed, there
is no documentation or other evidence cited for this registration; also see the Church of St. Mary
in Yeniköy and the Church of St. Mary in Eyüp, Sungurbey, Eski Vakıfların Yeni Sorunları,
350–51.
39. Ozil, Orthodox Christians, 75.
40. Anthemion, Stavrodromio, İstanbul Vilayet-i Celilesine, 22 Kanun-ı evvel 1341 (22
Dec. 1925).

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223
the establishment of the republic.41 Ultimately, this and many other petitions
remained unresolved and the properties in question were not registered in the
name of the relevant institutions. While community administrators could not,
or did not,42 effect a complete change to communal ownership, the transitional
characteristic of the period endured beyond the empire and were inherited, in
turn, by the nascent nation state.
The Question of Reorganization of Law under

the Republic, 1920–30s
Following its establishment in 1923, the Turkish nation state established a
minority regime for its non-Muslim population. The rules and regulations
of this regime were specified in the international peace treaty of Lausanne,
which was more broadly a foundational document of the republic.43 The third
section of the treaty entitled “the protection of the minorities” (ekalliyetlerin
himayesi), laid out the fundamental rights and liberties with respect to the
management of non-Muslim houses of worship, schools, and other communal
institutions.44 In essence, these rights and liberties were not much different
from the ones non-Muslims enjoyed in the Ottoman Empire, particularly in
their reorganized fashion in the Reform Edict of 1856 and after. What was
different in the nation state was that it declared itself secular in the sense that it
drew legitimacy from the people, rather than Islam, and in the following years
after Lausanne, the administrative mechanism was designed without religious
content. While the administrative system itself was not religious, it controlled
religion.45 How, then, did the trajectory of secularism work out in relation to
non-Muslim communities?
The treaty had determined the fundamental institutional rights and liberties
of non-Muslims, but it was up to domestic law to specify them. In this context,
41. Also see the case of the Church of Evangelistria in Dolapdere, which has property reg-
istered both on real persons (mutasarrıf) and on the church. Title-deed no. 202 was registered
on the church (Evangelistriya nam Rum kilisesi) and title-deed no. 73 on Yani Efendi (15 Dec.
1923), Anthemion, Koinotita Evangelistrias, EK 15.
42. It should not be assumed that there was always consensus among communal administra-
tors when they asked for state recognition of their legal corporate status, because registration in
the name of individuals empowered them personally in various ways. This is an entire sub-topic
in itself which will not be discussed in this article. See fn. 12.
43. “Lozan Sulh Muahedesinin Kabulüne Dair Kanunlar,” Düstur, 3. Tertip, 19 Teşrinievvel
1340 (11 Aug. 1339), Section III, “Azınlıkların Himayesi” (Istanbul: Necmi İstikbal Matbaası
1931), 36–42. For a further discussion, see Baskın Oran, Kavramlar, Teori, Lozan, İç Mevzuat,
İçtihat, Uygulama (Istanbul: İletişim, 2004), ch. 2.
44. “Lozan Sulh Muahedesi,” Articles 40–42.
45. See fn. 8.

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Lausanne overrides any contesting domestic regulation. In practice, however,

as a result of the ways in which international politics developed in the fol-
lowing decades, the creation of a now independent Turkey, and the ways in
which minority regimes faced difficulties more broadly throughout the world,
non-Muslims of Turkey would witness in varying degrees the primacy of
domestic law over the Lausanne treaty, as the former imposed restrictions on
the liberties that the latter brought.
More specifically regarding our purposes, there was no specification about
legal corporate status at this time. The new civil code, which was promulgated
in 1926, a few years after the establishment of the republic, stipulated against
the de novo establishment of institutions designed to propagate a particular
race, religion, language, or other similar characteristics of identity.46 Yet, it did
not say anything about the existing ones,47 and, during the early years of the
republic, the administration of the existing communal institutions was a more
pressing issue than the establishment of new ones. Non-Muslim communities
at this time already possessed a large number of institutions inherited from the
Ottoman past, the basis for their collective life in Istanbul. The issue of com-
munal property ownership played out in the republican era essentially in the
context of the physical inheritance from the empire.
One of the first major domestic regulations with regard to existing insti-
tutions was the Municipality Law of 1930. Within the context of the over-
all drive for nationalization of common areas and services administered until
then by charitable foundations,48 the law called for the transfer of all ceme-
teries to municipal ownership.49 Non-Muslim communal cemeteries were no
exception. Their legal entitlements began to be taken over by the metropolitan
municipality. This was how the ownership of the Armenian Gregorian cem-
eteries in Şişli and Yedikule, as well as the Armenian Catholic cemetery in
Şişli passed into the hands of the municipality.50 In the case of the Armenian
cemetery in Elmadağ, communal leaders made legal demands for the return of
ownership through 1936.51 This policy was applied to larger and smaller scale
properties. An example from 1949 was the confiscation of an Armenian water
fountain in Boyacıköy, which dated back to 1853. During the confiscation, the
46. “Medeni Kanun,” Düstur, 3. Tertip, vii, Article 74, 237.

47. “Kanun-ı Medeni’nin Suret-i Meriyyet ve Şekl-i Tatbiki Hakkında Kanun,” no. 864,
Article 8/1, quoted in Sungurbey, Eski Vakıfların Yeni Sorunları, 351.
48. Osman Ergin, Vakıflar, Belediyeler, Patrikhaneler (Istanbul: Türkiye Basımevi, 1944),
42–44.
49. Ibid., 55; “Belediye Kanunu,” no. 1580, 3 April 1930, Resmi Gazete, no. 1471, 14 April
1930.
50. “Ermeni Gregoryen Mezarlığı 80 yıl sonra Üç Horan’a iade edildi,” Agos, 2 Feb. 2015.
51. “O Kyriotis tou nekratafeiou tou Surp Agop,” Apogevmatini, 26 Jan. 1936.

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225
fountain was registered in the name of the municipality of Istanbul’s Sarıyer

neighborhood to which Boyacıköy belonged.52
Ultimately, these re-registrations constituted a violation of Article 42 of
the Treaty of Lausanne, which included the protection of communal institu-
tions, including cemeteries.53 The absence, however, of a specific legal status
for non-Muslim institutions opened up space for the arbitrary management of
these communal grounds;54 in some cases this allowed municipal administra-
tions to bypass communal authority and intervene in decisions about burials.55
The municipality law was promulgated in what was effectively a period
of legal limbo for corporate entities, in-between the still-Ottoman legal frame-
work for corporate identity and the upcoming 1935–36 regulations.56 The Law
of Charitable Foundations, which was issued in 1935,57 covered the legal con-
dition and the organizational structure of the existing vakıfs.58 It provided for
the foundations in two main sections under the categories of mazbut vakıf and
mülhak vakıf. The first category mostly concerned vakıfs which were admin-
istered by the state (The Directorate General of Foundations—Vakıflar Genel
Müdürlüğü—hereafter DGF)59 and included: a) vakıfs whose ownership had
been taken over by the state; b) vakıfs whose administration had been taken
over by the state; c) vakıfs whose trusteeship, i.e., oversight, had been taken
from communal administrations; d) vakıfs whose trusteeship had ended up
under those other than the ones designated by their founders; e) vakıfs which
52. “Boyacıköy Çeşmesi ya da bürokrasinin yılan hikayesi,” Agos, 1 Aug. 2014.

53. “Lozan Sulh Muahedesi,” Article 42; Kurban and Hatemi, Bir ‘Yabancı’laştırma
Hikayesi, 13; Sungurbey, Eski Vakıfların Yeni Sorunları, 365–82.
54. Elçin Macar, “Tüzel Kişilik Meselesi ve Ruhani Kurumları Geçmiş Deneyimi,” in Yok
Hükmünde, 81.
55. Kurban and Hatemi, Bir ‘Yabancı’laştırma Hikayesi, 13. In practice, while communal
administrations continued to use the cemeteries, they did not possess legal rights over them.
This was also the case in the confiscation regarding the Galata school.
56. Ibid., 12; Ergin, Vakıflar, 42.
57. “Vakıflar Kanunu,” no. 2762, Düstur, 3. Tertip, xvi, 586, 5 June 1935; Ergin, Vakıflar,
42–44; Kurban and Hatemi, Bir ‘Yabancı’laştırma Hikayesi, 13.
58. Kurban and Hatemi, Bir ‘Yabancı’laştırma Hikayesi, 12; 2012 Beyannamesi, 415,
fn. 80.
59. DGF was the culmination of an institutionalization which began in the early nineteenth
century with the establishment of the Ministry of Charitable Foundations. In 1916, religious
affairs were separated from the ministry which turned the ministry into a strictly fiscal and
financial institution, Ergin, Vakıflar, 50–51. This separation continued in the republican era, with
the difference of the ministry being downgraded to a directorate in 1935 and thus stripped of
its decision making powers, İştar Gözaydın, “A Religious Administration to Secure Secularism:
The Presidency of Religious Affairs of the Republic of Turkey,” Marburg Journal of Religion
11, no. 1 (2006): 1–8.

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no longer had a philanthropic function on the legal or practical level.60 The sec-
ond category, i.e., mülhak vakıf, included vakıfs which came under the supervi-
sory authority of the Directorate. They nevertheless would be run by their own
trustees or administrative councils. The law placed non-Muslim communal
institutions (cemaat vakıfları)61 under the second category (mülhak vakıf).62 All
vakıfs were tied to the DGF.63
According to one interpretation, the new administrative scheme did not
place the non-Muslim communal vakıfs under the first category of mazbut
vakıf, because putting them under the direct administration of DGF would have
contravened the Treaty of Lausanne.64 According to another opinion, however,
when viewed under a broader perspective, placing non-Muslim vakıfs under
the authority of DGF at all was a violation of Article 40 of the treaty, which
granted the communities authority to create, administer, and control their own
institutions.65 Ultimately, as the republican authorities were redesigning the
administrative mechanism for vakıfs, the question boiled down to whether
non-Muslim institutions, as institutions of minority status protected by an
international treaty, were to be granted complete independence to manage
their institutions, or were somehow to be integrated into the general system,
or somewhere in-between. Eventually, they were made subject to state control
within the context of the overall control of religion by the state. In the category
within which they were placed, however, they were not lumped together with
Muslim institutions, but were distinguished as cemaat vakıfs. In a situation
in which the Muslim community of the country was viewed as its population
base, the particular relationship of national ideology with the dominant reli-
gion of Islam created a context in which non-Muslims were treated differently.
Being placed within the category of mülhak vakıf, they were not under
direct state administrative authority. However, the administration of commu-
nal institutions was dependent on how the new framework would be applied.
It turned out that non-Muslim communal institutions could move into the first
category, of mazbut vakıf. Some of the communal, i.e., mülhak, vakıfs would in
time be reclassified as mazbut vakıf in accordance with the Law of Charitable
60. “Vakıflar Kanunu,” Article 1.

61. Cemaat vakıfları, i.e., communal foundations, specifically refers to non-Muslim com-
munal foundations according to the organizational scheme of the DGF based on the law of char-
itable institutions: https://www.vgm.gov.tr/vakıf-işlemleri/vakıflar-hakkında/cemaat-vakıfları
(accessed 21 Dec. 2017). Officially, there is no other kind of community.
63. Ibid., Articles 2–5.
64. 2012 Beyannamesi, 50; Yuda Reyna and Ester Moreno Zonana, Son Yasal Düzenleme
lere Göre Cemaat Vakıfları (Istanbul: Gözlem, 2003), 42.
65. Kurban and Hatemi, Bir ‘Yabancı’laştırma Hikayesi, 14.

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227
Foundations’ Article 21 (if all the trustees of a vakıf have deceased), Article
36 (if communal institutions were not registered as vakıf within the given time
frame) or Article 39 (if a vakıf does not form an administrative council for a
duration of ten years).66 The conditions laid out in these stipulations were fre-
quently fulfilled by communal institutions, due to the rapid population decline
that the communities experienced in the second half of the twentieth century,
which itself was a consequence of state policies.67
In addition to the stipulations regarding the role of the DGF, a crucial
change within the legal framework accomplished by the 1935 law was the
recognition of all mülhak vakıfs as legal corporate entities.68 This was a recog-
nition of legal corporate status through the institution of vakıf. Since the law
included the cemaat vakıfs in the mülhak vakıf category, did this mean that
communal foundations now all received legal corporate status?
According to one expert opinion, they did receive legal corporate status
because to give legal corporate status to communal institutions was in the
essence of the 1935 law.69 From this point of view, the state confiscation of a
church on the grounds that it did not have vakıf status was illegal. Exactly that
happened in the case of a church which did not have a separate legal standing
but belonged to Armenian Apeloğlu Andon Vakfı; this vakıf included a series
of institutions under its umbrella.70 So how are we to interpret the situation of
churches that did not belong to any vakıf? Were they devoid of corporate iden-
tity and thus legally vulnerable? While bestowing legal corporate identity may
have been in the spirit of the law, as long as the specific link between a com-
munal institution and a vakıf remained unclear, communal institutions were
liable to confiscations, as was demonstrated in, among others, the Apeloğlu
case. The legal initiative in 1935 which aimed to establish a central framework
for foundations therefore proved to offer an inconclusive arrangement with
respect to both the meaning of its provisions and its practical application.
The category of cemaat vakıfs has since been assumed to encompass all
non-Muslim institutions,71 yet the legislation as well as the legal rationale
66. “Vakıflar Kanunu,” Articles 21, 36, 39.

67. Reyna and Zonana, Cemaat Vakıfları, 174–75, Kurban and Hatemi, Bir ‘Yabancı’laştırma
Hikayesi, 28. Another example of the difficulties associated with this law comes from 1938
when an amendment to the law stipulated that the DGF should select the trustees of the vakıfs,
creating upheaval within the communities and leaving some of the institutions unsupervised,
until the cancellation of the regulation in 1949. Elçin Macar, “The Problems of Minority Foun-
dations during the Single Party Era,” in Economy and Society on Both Shores of the Aegean, ed.
Lorans Tanatar Baruh and Vangelis Kechriotis (Athens: Alpha Bank, 2010), 298ff.
69. Hüseyin Hatemi, referenced in 2012 Beyannamesi, 200.
70. Ibid., 200.
71. Ibid., 50.

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behind the law specifically referred to vakıf and not to communal institutions
in general. These were, however, two entities in question, which overlapped
but did not coincide. Vakıf, as explained earlier, is a specific legal formation to
which not all communal institutions either belonged at the time of the prom-
ulgation of the law or were later officially attached. Associating communal
institutions directly with the institution of the vakıf created legal confusion and
placed the institutions in a category that did not automatically accommodate
them. While all interested parties were aware that it was the communal institu-
tions that were under discussion, complications introduced by the specification
that the law applied to vakıfs opened up a contested space.
With regard to the organization of immovable properties that belonged
to vakıfs, the 1935 law stipulated in Article 44 that the properties under the
control of a functioning vakıf for fifteen years prior to the promulgation of the
law would be registered as the property of that vakıf along with the necessary
documentation such as rent contracts, tax receipts, etc.72 In relation to those
vakıfs that were not declared to the DGF, the law included a provisional article
which required from the trustees of those vakıfs declarations about the nature
of their institutions, their revenues, and the ways in which these revenues were
collected and distributed.73 It was the application of this provisional article that
more than any other shaped the future of communal institutions. Later known
as “the 1936 declarations,” statements of property provided by non-Muslim
communal administrations in response to this requirement became the central
reference point in matters concerning them, with major repercussions, and per-
sisted as the source of further ambiguities.
In response to this call to register, communal leaders with the assistance
of legal experts began to compile information about their immovable prop-
erties and to present official declarations to the authorities.74 Yet the ways in
which the leaders prepared for and made these declarations entailed difficul-
ties similar to those that they encountered in 1913. The evidence required for
the accurate completion of the forms was hard to collect. Once again, they
were confronted with the problem of reconfiguring an entire system according
to new requirements, which inevitably led to many omissions of once perti-
nent information, and to an absence of information on newly pertinent points
in the completed forms, as well as to misleading or vague legal descriptions
of existing property.75 In connection with difficulties of “translation,” a major
complication of the 1936 legal arrangements was that they recognized the

73. Ibid., muvakkat madde (provisional article), A.
74. “Synehizetai i efarmogi tou neou peri vakoufiou nomou,” Apogevmatini, 17 Jan. 1936;
“O neos peri vakoufion nomos kai ta meionotika ktimata,” ibid., 2 Feb. 1936.
75. 2012 Beyannamesi, 56.

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229
1913 declarations—and the available written documentation collected prior to

1913—as their point of reference. Since both the 1913 and pre-1913 declara-
tions were already incomplete, the 1936 regulations did not from the begin-
ning rest on solid ground.
The issue of communal cemeteries was once again highlighted. In complet-
ing the forms, it was found difficult, and in certain cases not even attempted, to
write a specific address for them; the location of this type of property was sim-
ply described with reference to other major sites or neighboring avenues.76 This
would later cause problems because as points of reference around these areas
changed, as a result, for example, of the demolition of buildings, it became
hard to determine their exact location. Furthermore, communities often did not
fill out a separate declaration for every item of property, as we saw earlier in
the case of the Apeloğlu vakıf. Likewise, a fountain adjacent to the Surp Yerits
Mangants Armenian Church was thought of as part of the church and therefore
not declared separately.77 It was also common for administrations to leave the
ownership section of the forms blank, since they did not have title-deeds to
support a claim to ownership.78
Taken as a whole, after the 1936 declarations, the state assumed non-Mus-
lim institutions to be of vakıf status, since it seemed that, according to the 1935
law, they should all have been included under the category mülhak vakıf. Yet
the majority of these institutions were not registered as vakıf, and what hap-
pened in 1936 was simply a non-exhaustive set of declarations of property, not
entailing either a reorganization or a confirmation of their official status as an
institution.
Law and Regulation in Practice: the Trajectory of Communal

Institutions and Their Properties, 1940–90s
In the decades following the 1936 declarations, in addition to the properties
that they already had, communal administrations continued to acquire immov-
ables in various parts of the city. These transactions were carried out in three
main ways: administrations directly bought the properties they were interested
in, or individual members of the communities donated or bequeathed prop-
erty to communal institutions. There was however no standard procedure for
legally registering these newly acquired properties. Some of them were reg-
istered to individuals, others to vakıf if there was one, while some were not
associated with title-deeds or a specification of ownership, etc.
76. Ibid., 56, 58.

77. Ibid., 56.
78. Reyna and Zonana, Cemaat Vakıfları, 87.

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One of the best-known cases is that of the Armenian orphanage in Tuzla,

which also received media coverage in the context of contested claims over its
property and its restitution to the community.79 The orphanage was built in the
mid-1960s upon the initiative of the vakıf of the Armenian Protestant church
and school in Istanbul’s Gedikpaşa neighborhood. The administration of the
vakıf purchased a large piece of land in Tuzla and constructed a building there
as a recreational complex for the use of the orphaned children in the summer.
The plot was bought from a (Turkish) private owner and registered in the name
of the vakıf in July 1964.80
Another orphanage in Büyükada, that of the Greek community, also
received many gifts and donations in the same period. This was how it acquired
a house on 5 March 1957, to generate revenue for the children that it was
looking after.81 Likewise in 1963, the orphanage received, through inheritance,
another house along with two plots of land in Beyoğlu.82 These properties were
listed in communal register books as having been acquired with title-deeds,
and the date on which the title-deed was received was specified. There is no
information as regards precisely who was vested with the title on the deed,
but it is possible that the deeds remained in the name of the donors, not least
because what was listed was property received with its title-deed, as if they
came together. In another bequest, the orphanage received through inheritance
another house, together with a yard on the island where it was situated.83 Here,
the title was not filled out at all in the new deed but left blank, a common
practice of the bureaucracy at this time. The practice of not filling out the title
occurred in situations when a property passed from the hands of its individual
owner, usually a benefactor, but was not registered in the name of the institu-
tion that received the property. One reason for the absence of registration was
that the receiving institution did not have legal corporate identity.
During this period, the orphanage in Büyükada also listed, among its
properties, immovables for which it did not have title-deeds at all. A house
that the orphanage received in Tarlabaşı, through inheritance, did not have a
title-deed.84 Likewise, a house and a yard that it acquired through inheritance
79. For a summary of the developments about the confiscation of the orphanage and its
reversal, see Agos, 6 Nov. 2015.
80. See the title-deed registered on the vakıf of the Armenian Protestant Church at Kumkapı,
31 July 1964, in Tuzla Ermeni Çocuk Kampı (Armenian Children’s Camp of Tuzla) (Istanbul:
İHD, 2000), 21.
81. Anthemion, KAL 020, Syllogos Konstantinopoliton, Orphanotrofeia Prinkipou, p. 2, no. 7.
82. Ibid., p. 2, no. 3, 4, 5.
83. Ibid., p. 2, no. 9. Also see p. 3, no. 11, 12.
84. Anthemion, KAL 020, Syllogos Konstantinopoliton, Orphanotrofeia Prinkipou, p. 3,
no. 17.

193.140.109.37 on Wed, 29 Mar 2023 08:49:57 UTC
231
on the same island and on the nearby island of Kınalı, did not have title-deeds.85
In the latter two cases, there is reference to court orders, which (most prob-
ably) allowed the transfer, without however providing the legal guarantee of
an actual title-deed.86 Dispute over another piece of property, once again of
the orphanage, provides us with more detailed evidence and insights into the
practice of transfers and registrations. A member of the Greek community left
in her will a house to her brother which would upon his death be bequeathed to
the orphanage. She also filed for a legal order for the transfer of the ownership
which the court granted on 15 May 1940. In the meantime, both individuals
died and according to the will, the ownership of the property should have been
transferred to the orphanage. Yet in 1962, in a letter addressed to the adminis-
trative council of the orphanage from the National Real Estate Administration
(İstanbul Defterdarlığı, Milli Emlak Müdürlüğü), we learn that this transfer
of ownership, sanctioned by the court order in 1940, was never carried out.87
From the 1950s onwards, we find clearer references to communal organi-
zations having vakıf status, entailing legal corporate status and the possibility
of registering property in their name as institutions. In 1957, a letter written by
the Istanbul Governorship to the Istanbul Bureau of Legal Affairs depicts the
Büyükada orphanage as vakıf and therefore capable of acquiring immovable
property.88 At this time, authorities did not take for granted that a communal
institution would have vakıf status and therefore legal corporate identity, but
found it necessary to state that it did in clear terms.89 By the 1980s, the let-
terheads of communal institutions used in official documentation had begun
to carry the name of a vakıf. In 1986, the name of the orphanage formally
appeared as the vakıf of the Greek orphanage for girls and boys in Büyükada
(Büyükada Rum Erkek ve Kız Yetimhanesi Vakfı) in a document that listed two
individuals as having made a financial contribution to the communal fund.90
85. Ibid., p. 2, no. 2.

86. Ibid., p. 3, no. 13, 14.
87. Ibid., from İstanbul Defterdarlığı (Revenue Office), Milli Emlak Müdürlüğü (Real
Estate Administration) to Büyükada Rum Yetimhanesi İdare Heyeti (Administrative Board of
the Büyükada Greek Orphanage), 4 Oct. 1962.
88. Anthemion, KAL 027, Syllogos Konstantinopoliton, Orphanotrofeia Prinkipou, 28 Jan.
1957, from İstanbul Valisi (Governor of Istanbul) to İstanbul Hukuk İşleri Müdürlüğü (Legal
Affairs Bureau).
89. Anthemion, Koinotita Evangelistrias, EK 15, 12 June 1951, from İstanbul Valisi to
İstanbul Hukuk İşleri Müdürlüğü.
90. Anthemion, KAL 025, Syllogos Konstantinopoliton, Orphanotrofeia Prinkipou, 27 May
1986. See also other letterheads in Anthemion, Koinotita Evangelistrias, EK 15: “Yenişehir
Evangelistria Rum Ortodoks Kilisesi Vakfı,” (June 1983); “Kurtuluş Aya Dimitri, Aya Lefter,
Aya Tanaş Rum Kiliseleri Vakfı,” (Aug. 1992).

193.140.109.37 on Wed, 29 Mar 2023 08:49:57 UTC
Vakıf status which all Greek and Armenian institutions eventually acquired,
guarantees their legal corporate identity today (and ties them to DGF). For-
merly even when they registered property in the name of an institution (such
as an orphanage), legally this was on shaky ground since the institution might
not have legal corporate identity. The nominal change in 1935 gave all mülhak
vakıfs (including cemaat vakıfs) legal corporate identity but this acknowledge-
ment did not have much practical result because many communal institutions
were not vakıf. This situation began to change in the second half of the twen-
tieth century through a process of “vakıfization”—the gradual achievement of
vakıf status by all surviving non-Muslim communal institutions. A change to
the civil code in 1967 facilitated this development.91 For non-Muslims, this
process entailed the vakıfization of their already existing institutions, i.e.,
the acquisition of legal status rather than the formation of new institutions.92
Henceforth when they acquired new revenue-generating property to support a
church or a school, these would be attached to an already existing institution
as vakıf.
Vakıfization, however, coincided with deteriorating conditions for com-
munal property ownership.93 Then the weak legal foundations for corporate
identity combined with the political environment, on both the domestic and
the international level, to produce a questioning of communal property own-
ership. A highly significant change in these later years came in 1974 when
the Supreme Court’s General Civil Assembly issued a decision that equated
the 1936 declarations with a vakfiyye.94 Vakfiyye, the foundational document
of a traditional historical vakıf, is a legal document that lists the properties of
the related charitable foundation, and lays out the conditions under which the
foundation can acquire and manage property in the future including by sales,
inheritance, gifts, and donations.
91. Kurban and Hatemi, Bir ‘Yabancı’laştırma Hikayesi, 20. http://www.mevzuat.gov.tr

/MevzuatMetin/5.3.743.pdf (accessed 5 Oct. 2016), 1300, 1304–09.
92. In its defense in a court case, a vakıf administration pointed at the presence of two
types of vakıfs, those that were established before the Civil Code (1926) and those that were
established after. Anthemion, Th.Mph.29 Ieron Agiasma Blahernon, Danıştay 12. Daire, Karar
no. 1973/1205. The vakıfs that were established after the Civil Code were not vakıfs of newly
established institutions, but of those that changed legal status.
93. Regarding the adverse atmosphere for minorities, see Alexis Alexandris, The Greek
Minority of Istanbul and Greek-Turkish Relations 1918–1974 (Athens: KMS, 1992); Oran, Tür-
kiye’de Azınlıklar; Samim Akgönül, ed., Reciprocity: Greek and Turkish Minorities, Law, Reli-
gion and Politics (Istanbul: Bilgi University, 2008); Rıfat Bali, Model Citizens of the State: The
Jews of Turkey during the Multi-Party Period (Madison, NJ: Fairleigh Dickinson University,
2012); among others.
94. 1971/2-820 Esas ve 1974/505 K. sayılı karar, 8 May 1974, Reyna and Zonana, Cemaat
Vakıfları, 43; Kurban and Hatemi, Bir ‘Yabancı’laştırma Hikayesi, 14.

193.140.109.37 on Wed, 29 Mar 2023 08:49:57 UTC
233
There were, however, two major difficulties with the decision of the
Supreme Court. First, the 1936 declarations, as mentioned above, did not con-
stitute complete and detailed lists of the properties in communal possession.
Second, declarations did not capture properties subsequently acquired. They
were simply lists of the immovable properties of the foundations as they had
been able, imperfectly, to compile them at the time. The recognition of the dec-
larations as vakfiyye, therefore, opened a space in which communal property
could be, and was actually easily challenged. It remained possible to contest
the claim of a charitable foundation to be the legal owner of an immovable
property acquired after the initial declaration.95
The decision of the Supreme Court in 1974 was a turning point for com-
munal property ownership. In 1979, the land and building of the above men-
tioned Armenian orphanage in Tuzla was transferred to the ownership of the
DGF, on the grounds that vakıfs had not been given power to buy new property
after the ones they declared in 1936.96 There are many cases of such property
contestation. For example, in 1992, based on the decision of 1974, the state
fiscal authorities (Istanbul Defterdarlığı) contested the ownership of a high-
value apartment building bequeathed in 1955 to the vakıf of the Armenian Surp
Pırgiç hospital. The court decided against the bequest and in favor of giving
the property back. Ignoring the legal heirs of the original owner, they decided
that the property should revert to the treasury.97 These policies and practices
continued throughout the 1980s and 90s.
Conclusion
The issue of non-Muslim community property ownership from the late Ottoman
Empire through republican Turkey has been characterized by legal vagueness
and institutional fragility. Neither Ottoman legal modernization and commu-
nal institutional transformation of the late nineteenth century nor the republi-
can regime of minority governance after 1923 has brought a comprehensive
and systematic framework for the legal registration of communal property that
would cater to the demands of the relevant period and social make-up.
Centralizing states have traditionally been wary of, and reluctant to rec-
ognize the corporate status of alternative sources of authority, which drew
power from their possession of land. With the ideological reorientations of the
nineteenth century, social and infrastructural changes, and urbanization among
other factors, the issue of legal corporate identity began to assume a newer
95. Kurban and Hatemi, Bir ‘Yabancı’laştırma Hikayesi, 14; Reyna ve Zonana, Cemaat
Vakıfları, 88–91.
96. Tuzla Ermeni Çocuk Kampı, 46–53.
97. 2012 Beyannamesi, 134–37.

193.140.109.37 on Wed, 29 Mar 2023 08:49:57 UTC
and a more acute form. While non-Muslim communal institutions traditionally

had mixed forms of institutional standing in the Ottoman Empire, there was
a development towards a formal recognition of legal corporate identity in the
second half of the nineteenth and early twentieth centuries. While moderniza-
tion of law, contemporary necessities, and demands of strong and populous
non-Muslim communities of the imperial context brought a degree of recogni-
tion of legal status, this was not realized in full in relation to both the authority
of the state and its Muslim characteristic. This context marked the beginning
of ambiguity, which would continue into the twentieth century and character-
ize non-Muslim community ownership.
After the establishment of the republic in 1923, ambiguity referred to the
vakıf framework. Contesting usual conceptions of secularism and the tradi-
tional understanding of vakıf, this examination has shown how the Turkish
nation-state, rather than the Ottoman Empire, designed a vakıf framework
for non-Muslims. While vakıf is essentially a Muslim charitable institution,
the structural secularization of the vakıf framework and its attachment to the
state allowed for the non-Muslim institutions to be included in this scheme. In
practice, however, unlike those of Muslims, non-Muslim institutions were not
already vakıf, so they had to be turned into it, in a context in which the state
emerged as an agent of standardization with a focus on Muslimness.
In further historicizing the trajectory of non-Muslim corporate status, the
article has demonstrated that while certain legal and administrative changes
were introduced in the early republic, it would be only in the second half of
the twentieth century that a more comprehensive legal reorganization would
be seen through vakıfization. Vakıfization, in practice, worked with contesta-
tion of non-Muslim communal property in the politically charged atmosphere
of opposing nationalisms after the 1960s, particularly around the Cyprus issue
culminating in the division of the island in 1974. In other words, the period
when the non-Muslim institutions/property received legal corporate identity
through the vakıf framework was also the period when these institutions and
property increasingly began to be questioned by the state which also oversaw
the vakıf framework.
In the early 2000s while the minority population was highly reduced, a
series of changes in the domestic and international spheres including the prom-
ulgation of a new civil code (2002), a law of charitable foundations (2008),
the active involvement of the European Court of Human Rights in minority
issues, and the prospect of the country’s integration into the EU have affected
non-Muslim communal legal and institutional standing in new ways. The res-
titution regarding the school of Galata, which began this article, is an exam-
ple of the effects of this transformation, even though many properties remain

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235
disputed and legal uncertainties continue.98 Further, the world of the 2010s
brought newer circumstances including intense economic globalization, the
increasing monetization of property, and radical urban construction activity,
accompanied by demands for equal citizenship. These factors would have to
be taken into consideration in further examinations of the contemporary situa-
tion of communal institutions.
Acknowledgements: I would like to thank Joanna Innes, Elçin Macar, the commentators at
the various venues I presented parts of this research, and the anonymous reviewers of JOTSA
for their insightful comments. I also would like to thank the editors of JOTSA for their smooth
cooperation during the publication of this article.
Ayşe Ozi̇ l is an Associate Professor of History and teaches in the History and Turkish Studies
Programs at Sabancı University, Istanbul, Turkey. (ayseozil@sabanciuniv.edu)
98. For example, see “Bin gayrimenkulun akibeti belirsiz,” Agos, 24 Aug. 2012.

193.140.109.37 on Wed, 29 Mar 2023 08:49:57 UTC

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Whose Property Is It?

The State, Non-Muslim Communities, and the Question of

Stable URL: https://www.jstor.org/stable/10.2979/jottturstuass.6.1.12

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and communal archival sources, it specifies and documents the relationship of

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Legal Corporate Identity and the Vakıf: a Historical Background

“Transforming Macau: Planning as Institutionalized Informality and the Spatial Dynamics of

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immovable property would not be bequeathed to the relatives of individual

Non-Muslim Communal Institutions and Their Properties

19. Eugenia Kermeli, “Central Administration versus Provincial Arbitrary Governance:

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The Nineteenth-Century Transformation in Corporate Law

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Modern forms of property registration were seen to require exclusive and

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Under these circumstances community administrations increasingly relied

32. Archives of the Istanbul Rum Communities (Anthemion), Stavrodromio, I Kentriki

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regulate communal property ownership more systematically.37 The code stated

37. “Eşhas-ı hükmiyenin emval-i gayr-i menkuleye tasarruflarına mahsus kanun-ı

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The Question of Reorganization of Law under

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Lausanne overrides any contesting domestic regulation. In practice, however,

46. “Medeni Kanun,” Düstur, 3. Tertip, vii, Article 74, 237.

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fountain was registered in the name of the municipality of Istanbul’s Sarıyer

52. “Boyacıköy Çeşmesi ya da bürokrasinin yılan hikayesi,” Agos, 1 Aug. 2014.

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60. “Vakıflar Kanunu,” Article 1.

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66. “Vakıflar Kanunu,” Articles 21, 36, 39.

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72. “Vakıflar Kanunu,” Article 44.

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1913 declarations—and the available written documentation collected prior to

Law and Regulation in Practice: the Trajectory of Communal

76. Ibid., 56, 58.

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One of the best-known cases is that of the Armenian orphanage in Tuzla,

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85. Ibid., p. 2, no. 2.

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91. Kurban and Hatemi, Bir ‘Yabancı’laştırma Hikayesi, 20. http://www.mevzuat.gov.tr

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and a more acute form. While non-Muslim communal institutions traditionally

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