When Can an Interim Injunction Be Requested for a Suspicious Title Transfer?
A Deceased Person’s Sham Transaction
A Deceased Person’s Sham Transaction
Prepared by: Constantinople
An interim injunction may be considered where transfer or a change in the property’s position risks making enforcement of the right substantially harder or causing serious harm. Alleging a deceased person’s sham transaction does not automatically obtain one. Protection requested must connect to the dispute and demonstrated risk.
Specific information that the property is being marketed again, rapid successive transfers or a transaction hindering enforcement may be investigated. The abstract possibility of a future sale differs from an urgent risk based on particular events. Current title, earlier transfers and the risk’s basis should be presented together.
This protection under Articles 389 and following of the Code of Civil Procedure does not replace the main action. The court assesses scope, prima facie proof, any necessary security and effects on the other party. Provisional attachment securing a monetary claim and an injunction in a title dispute also have different conditions and functions.
We first identify current ownership and transaction status, then which right may be harmed by which change. Application and follow-up steps before or during litigation are planned separately. Granting an injunction does not mean the action is won, nor refusal necessarily that the substantive claim is unfounded. A known critical transfer or service date should be stated clearly in the initial application.
How Is an Interim Injunction Planned in a Deceased Person’s Sham Transaction Case?
One of the most critical risks is further transfer of the property before or during proceedings. The heir may need to assess both the sham transaction allegation and the risk of another change of ownership.
An injunction arises here, but it is not automatic for every suspicious transfer. The court considers whether the property is disputed, the risk of enforcement becoming harder or impossible, prima facie proof, security and the other party’s rights together.
This article explains what an interim injunction means in a deceased person’s sham transaction matter, which documents can support it, why transfer risk matters and which risks should be identified before litigation.
Related guides: For the general conditions, see What Is a Deceased Person’s Sham Transaction? article; for the evidence structure, see How Is a Deceased Person’s Sham Transaction Proved? article.
What Is an Interim Injunction?
It provides provisional protection over disputed rights or assets so the eventual judgment is not ineffective. Its purpose is neither punishment nor deciding the outcome in advance, but limiting risks that may substantially hinder or prevent enforcement while proceedings continue.
It usually concerns title records in this type of case. An heir alleging that an apparent sale actually aimed to deprive heirs may request protection against further transfer to third parties.
Important limit: An interim injunction does not guarantee the litigation outcome. The decision does not conclusively accept a deceased person’s sham transaction allegation; it provides only temporary legal protection aimed at preventing risk from worsening during proceedings.
Why Does an Injunction Matter?
The property is registered to someone else. The claimant heir alleges an apparent sale concealing an intention to deprive heirs. While proceedings continue, however, the property may be sold again, mortgaged or subjected to another right in rem.
Its importance therefore usually stems from:
- Transfer to a third party,
- Creation of a mortgage or limited right in rem,
- Increased difficulty implementing the eventual judgment,
- New disputes over the land register,
- Practical weakening of protection available to the heir at the end.
These risks should not be alleged abstractly. Specific facts, documents and evidential indications showing the need must be presented.
What Conditions Does HMK m. 389 Require?
Under HMK m. 389, an interim injunction over the subject of the dispute may be granted where a possible change in existing circumstances risks substantially hindering or entirely preventing enforcement of the right, or where delay may cause serious harm.
This usually raises the question:
What happens if ownership changes while the case continues?
Further transfer, mortgaging or creation of other rights in rem may make the result sought by the heir at the end of litigation more complex and risky. The injunction request should therefore rest not only on the sham transaction allegation but also on a concrete risk of change affecting the property.
The court does not finally determine the merits at this stage. It assesses whether the property is disputed, whether serious indications support the allegation and the risk of delay.
What Is Prima Facie Proof?
Under HMK m. 390/3, the applicant must clearly state the ground and type of injunction and establish prima facie entitlement on the merits. This does not mean proving the action has definitively been won.
It means presenting sufficient evidence and indications to show:
- The allegation is not abstract.
- The property is genuinely central to the dispute.
- A serious connection exists between the transfer and inheritance right.
- Whether the transfer was a genuine sale is open to dispute.
- Further transfer may weaken the eventual judgment’s effect.
For example, if the recorded price is low, the buyer’s means appear insufficient to purchase the property, there is no bank record, the deceased continued use after transfer and family relationships support the allegation of deprivation, these factors may matter together when assessing prima facie proof.
Prima facie proof note: Prima facie proof is not a final judgment. The court assesses serious indications sufficient for temporary protection, rather than the litigation outcome.
Why Is Transfer to a Third Party Critical?
In these cases, third-party transfer risk is one of the principal reasons for an injunction. If property is transferred to someone else during proceedings, the matter may extend beyond the relationship between the deceased and the first transferee.
It may create these risks:
- Good faith of the new owner may be disputed.
- Reliance on the land register may arise.
- Parties and claims may change.
- New mortgages or limited rights in rem may be created.
- Implementation of title cancellation and registration may become more complex.
An approach of “let us wait first” may therefore not always be safe in a suspected case. Current title, transfer movements and possible preparations for sale should be examined promptly.
How Are TMK m. 1023 and the Good-Faith Third-Party Risk Assessed?
Article 1023 protects a third person acquiring ownership or another right in rem in good-faith reliance on registration. This explains why reliance on the land register matters in inheritance and real estate disputes.
If transfer occurs before the injunction is entered, the new person’s good faith and reliance may be disputed separately. This does not produce the same outcome in every case but may increase legal risk.
Third-party risk: Timing matters. Further transfers before entry may raise good faith under TMK m. 1023. Title records, the possible injunction and litigation strategy should therefore be assessed together.
Which Documents Are Needed?
Saying merely that property could be transferred may be insufficient. Specific documents and indications must support the request. The court assesses actual necessity against those indications.
These may be especially important:
- Current title record,
- Historical title records,
- Official deed and transaction type,
- Registered sale price,
- Market value research at transfer,
- Records of the buyer’s means,
- Bank movements or documents supporting alleged payment,
- Information showing whether the deceased needed to sell,
- Information on actual use afterwards,
- Specific events supporting witness testimony,
- Indications of marketing or further transfer.
These must be assessed together both for prima facie proof of the allegation and for establishing the injunction ground.
What Is the Security Risk?
Under HMK m. 392, the applicant may have to provide security for potential loss to the opposing party or third persons if the claim proves unjustified. Depending on the case, the court may require security or give reasons for dispensing with it.
Security has practical importance in these matters. Where property is valuable, economic effects on the opposing party or third persons may be alleged. The heir seeking protection should therefore assess possible security at the outset as well as the legal justification.
Security note: Whether security is required and its amount may vary with the case, evidence, scope and judicial assessment. The possibility should therefore be included in the risk assessment.
What Happens After the Decision?
Entry in the land register and implementation require separate follow-up. Granting alone may be insufficient; transmitting the decision to the relevant registry, entering it and correctly understanding its scope matter.
Check the following:
- Which property is covered,
- Whether transfer, mortgage or other acts are prevented,
- Whether it has been entered in the land register,
- Whether an objection or discharge request exists,
- Whether any required security was provided in time,
- Filing the main action or linking the injunction to pending proceedings.
The injunction does not resolve the whole case. It helps prevent worsening property risk during proceedings.
What If It Is Refused or Discharged?
Refusal does not necessarily mean the case will be lost, just as grant does not mean it will be won. The provisional stage differs from the merits.
Reasons for refusal must be read carefully. The court may find insufficient prima facie proof, no concrete protective ground, weak connection to the dispute or disproportionate relief.
If an injunction is granted, the opposing party may object or request discharge on the ground that conditions have changed. The case’s documentary and evidential structure must therefore continue to be followed after grant.
Managing expectations: An injunction does not guarantee the outcome. The aim is to try to prevent new legal risks affecting the property during proceedings.
How Is the Evidence and Risk Table Assessed?
The following summarises what evidence may show and the risk connected to it.
| Document / Evidence | What May It Show? | Significance for the Injunction |
|---|---|---|
| Current title record | Shows registered ownership and current legal position. | Identifies the property over which relief is sought. |
| Historical title record | Shows earlier changes of ownership. | May connect the allegation to the transaction chain. |
| Official deed | Shows the recorded transaction type and price. | Starting document for the dispute between apparent sale and actual intention. |
| Market value research | May show a difference between recorded price and actual value. | May support prima facie proof; may be insufficient alone. |
| Bank records | May show whether the price was actually paid. | May strengthen or weaken the genuine-sale defence. |
| Buyer’s finances | Whether the buyer could afford the price. | Relevant to genuineness of the apparent sale. |
| Actual-use information | May show who used the property afterwards. | May indicate whether the sale remained only apparent. |
| Sale advertisement or preparations for another transfer | May show further transfer risk. | May support urgency of the protective ground. |
How Is the Urgent Risk Checklist Used?
Before considering an injunction, these matters should be checked promptly in a suspicious transfer case.
How Are Title and Transfer Risks Assessed?
- Has current title been obtained?
- Has title history been examined?
- Has a further transfer occurred?
- Are there mortgages or attachments?
- Are there indications of marketing?
- Which property will the request concern?
How Are Prima Facie Proof and Security Assessed?
- Has the price-to-market-value difference been investigated?
- Has the buyer’s financial capacity been assessed?
- Have bank movements or payment records been examined?
- Did the deceased genuinely need to sell?
- Have witness and digital evidence been matched to specific facts?
- Has potential security been included in planning?
What Are the Answers to Frequently Asked Questions?
Is an Injunction Certain in This Type of Case?
No. The court assesses whether the property is disputed, prima facie proof, transfer risk, security and proportionality together; relief is not automatic.
Does Grant Mean the Action Will Be Won?
No. This is provisional protection, without guaranteeing the outcome or conclusively accepting the allegation.
What Does Prima Facie Proof Mean?
It means serious indications justifying relief, rather than final proof of the case. Title, price difference, bank movements, purchasing means and actual use may be assessed together.
Must Security Be Deposited?
The court may require it according to the case. Necessity and amount depend on scope, evidence and potential loss.
What If a Third Party Has Already Acquired the Property?
The new person’s good faith and reliance, transfer date and party structure are assessed separately. This may increase risk.
Related Documents and the Next Step
Preserve current title and concrete transfer-risk documents; clearly state any approaching transaction date in your application.
Related Questions
Legal Grounds
HMK m. 389–397; injunction conditions, prima facie proof, security and implementation deadlines are examined separately.