14. Legal Department 2021/130 E. , 2021/979 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
Counsel for the plaintiff against the defendants and granted the petition on 22.04.2013 by day sales of real estate and registration of the deed upon the request of cancellation based on the contract made according to the warrant reversal at the end of the trial; the case for the acceptance of a part of examination requested by the defendants attorney blog yargitayca 15.11.2018 provision given time, but apparently decided upon the adoption of the petition of Appeal has been resolved by examining all the papers in the file and:
K A R A R
The case concerns the cancellation of the title deed based on the real estate sales promise agreement and the request for registration.
The deputy plaintiff, the defendants’ murisi …’s … 1. 27.05.1998 12489 a preliminary agreement to sell dated notary public Journal number and the second region of the district, the neighborhood is 490 island parcel 371 (398 574 the new name parcels) number is registered in real estate and a surface area 380m2 Island house with a garden in the same place platoon 398 628 skills parcel delivery area irrigated crop quality recording in the real estate deed registered under the number 348m2 maliki will be transferred to the plaintiff from the son of the sale of all the shares of the inheritance, the promise has been, stating that the entire sale price was paid in advance, but the title deed transfer was not performed, he requested and sued to decide on the cancellation of the inheritance shares belonging to the murisi of the defendants in the real estate subject to the lawsuit and the registration of the title deed on behalf of the plaintiff.
Some of the defendants expressed their acceptance of the lawsuit filed, while others advocated that the case be dismissed.
According to the decision of the Court dated 19.10.2015 No. 2014/14102 and Decision No. 2015/9178 of our Department upon the decision to accept the case, “… The debtor of the sales promise agreement dated 27.05.1998 based on the case … died on 21.03.2013, … 2. According to the warrant obtained from the magistrate’s Court of probate dated 07.02.2013 his brother as the heir of the descendants of the record during the trial, which takes place maliki …’s wife’s of the probate court dated 08.04.2014 the same sentence …’s heritage as the son of …’s children (Ilçin), … (Ilçin), …’e is being referred to, where there is a conflict between two separate probate decree, probate probate decree to be taken after the warrant is resolved the contradiction between the two, according to the new party had to be decided according to the results of enabling the formation of” the deterioration of the provision on the grounds that it was decided to.
As a result of the trial conducted in accordance with the decision to overturn, the court decided to “accept the case; …province, Second District district, … Neighborhood, Hospital road Location 398 ada 574 parcel and 398 ada 628 parcel registered real estate from the owner … son … daughter … with the cancellation of the title registration of shares that will hit the plaintiff … son … TC ID number … in the name of the title register and registration”.
A number of defendants appealed the verdict.
29 of the Turkish Code of Obligations No. 6098. real estate sales promise contracts, which are obtained from Article 237 of the Turkish Code of Obligations No. 6098. article 706 of the Turkish Civil Code No. 4721 and Article 89 of the Notary Public Law No. 1512. in accordance with the provisions of the article, it is a type of contract that must be personally drawn up in front of a notary, in other words, its validity is subject to the condition of an official form, which imposes debts on both parties and provides personal rights. 716 of the Turkish Civil Code No. 4721, when the performance of the promised creditor from the seller, who is charged with the debt of transferring the property by the real estate sales promise agreement, is not fulfilled. in accordance with the article, the applicant may request the fulfillment of the provision of the debt in the case of cancellation and registration of the title deed. Undoubtedly, the person who requests the fulfillment of the debt from the other party must have fulfilled his actions.
In order to be able to decide on the acceptance of cases arising from the contract of promise of sale, the contract must have the ability to perform. Ownership of cooperation (TMK m.701) subject if one of the partners of the cooperation in real estate (in the case of a subsidiary) promises to sell it to a non-partner, the contract is valid as a commitment treatment, but there is no mention of the possibility of performance of the contract until the cooperation partnership is resolved. This may be due to the presence of a record preventing collateral savings in the title deed to the real estate promised for sale, or the violation of Article 8 of the Law on Land Protection and Land Use No. 5403. it also applies if the sale of real estate is promised in violation of the provisions of the article, or if the promised real estate is the subject of a property dispute in another court.
On the other hand, Article 297/2 of the Code of Civil Procedure No. 6100. in accordance with the article; In the concluding part of the provision, without repeating any mention of the grounds, it is necessary to show the debt and recognized rights charged to the parties by the provision issued for each of the claims under the ordinal number in such a way as not to cause obvious, doubt and hesitation.
When it comes to a concrete case; in the form of a preliminary agreement to sell dated 27.05.1998 arrangement pursuant to Muris 398 398 574 628 island island parcel and parcel of the defendants case No. the son of the record owners of Real Estate Property will be transferred from the plaintiff to the sale of all the shares of the inheritance, although they have pledged to the plaintiff the land registry son with the son of the Maliki Muris of the defendants’joint heirs are not. Because the plaintiff’s father … is the rightful owner of the county, the plaintiff … cannot be the heir of his grandfather … his son …. Muris of the defendants, 3.he is committed to the sale of real estate to a person. As a result, since the joint ownership continues in the real estate subject to litigation, the possibility of performance does not arise until it turns into shared ownership.
Since the possibility of execution has not yet been established by the court, it was necessary to decide on the rejection of the case, while it was not considered correct to decide on its acceptance, it was necessary to decide on the violation of the provision.
According to Adoption; leaving no room for hesitation, and in a way that will be conducive to the execution, while the terms “son of the immovable from the Maliki … the girl …’which will hit e of title deed registration of the shares with the cancellation of registration and certification of land in the name of the son of the plaintiff” clearly shares that without notice, in the form cancels execution rates of the property in a way that won’t be conducive to the provision is also not true.
CONCLUSION: For the reasons described above, it was decided unanimously on 17.02.2021 that some defendants’ attorney’s appeals would be accepted and the provision would be OVERTURNED, the appeal fee would be returned to the depositor, and the way to correct the decision would be open within 15 days from the notification of the decision.
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