General Assembly of the Law 2018/559 E. , 2020/261 K.
“text of jurisprudence”
COURT OF First Instance: Court of First Instance
1. At the end of the trial between the parties for the case “Cancellation and registration of title deeds based on the right to pre-decease”, Istanbul Anadolu 13. The decision on the dismissal of the case filed by the Court of First Instance from the point of view of some plaintiffs, from the point of view of the plaintiff … and the main respondent … and his friends, on appeal by the plaintiff … and the main respondent … and his friends, the Supreme Court 14. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the plaintiff … and the principal respondent … and his friends, the deputy.
3. After reviewing the documents in the file by the General Assembly of the Law, they were discussed as necessary:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. The lawsuit was filed by the plaintiffs… and their friends, and a request for substantive intervention was made by their friends.
4.1. The plaintiffs … and their friends filed a petition for the lawsuit dated 14.10.2014; the subject of contention Istanbul Maltepe district name threader 47 70 6/1 (old 16) immovable parcel No. 132,37m2 of the Department of the Ministry of transportation, directorate general of Railways and airports construction (DHL) on behalf of Marmaray and expropriated by the Regional Directorate of the road type has been established that destroyed the building on the plot, since the plot that turned into the nature of the immovable without correction with undertaking shareholders dated 09.03.2013 open the case of the elimination of the partnership and other stakeholders, the stakeholder who wants to sell your welcome to share that it was accepted that it would offer, stakeholder …’s before you share keserli to Jasmine, Jasmine, citing a Keserli made by the defendant …due to the sale of shares that were sold, without notice, the defendant has paid on behalf of the share specified in the deed of 60/2000 TL 80.000.00 this price by the payment based on the sales price of the plugin and all legal rights of their clients by accepting the pre, with the cancellation of the title deed in the name of the defendant on behalf of clients requested that the decision be given to equally registration.
4.2. Intervention petition requesting the original dated 30.04.2015 and his deputy in front of your client intake contentious stakeholder premises the subject of the case they made the move, sales operations, new learnings, based on the land involved in the case as the right to pre 60/2000 share with registration cancel registration of the shares in consideration of his real estate on behalf of clients, the case is decided the value of the sales price 80.000 TL to be taken into account as requested.
The Defendant’s Answer:
5. In the respondent’s deputy’s petition dated 10.11.2014; Since the floor easement is established on the immovable property that is the subject of contention, Law No. 634 8. he requested that the case be decided to be dismissed by stating that the right to information cannot be exercised in accordance with the article and that his client’s good faith will be protected due to the fact that he is the second buyer.
ruling:
6. Istanbul Anatolia 13. The decision of the Court of First Instance dated 12.05.2015 and dated 2014/416 E., 2015/222 K. by his numbered decision; the subject matter of the case is subject to immovable immovable property ownership, condominium premises to move into the building collapses each independent section of the owner’s property even the right to individual ownership of the premises subject to the right to move and is not used in the original pre trial involved the denial of the plaintiff, the plaintiff filed was left on 17.02.2015 takipsiz and … in terms of, and understood, that in case the plaintiff, the plaintiff’s case a refresh period of the Civil Procedure Law (HMK)’s 150. according to the article, it has been decided to be considered unopened.
The Decision to Spoil the Private Apartment:
7. Istanbul Anatolia 13. The plaintiff … and the principal respondent … and their friends have requested an appeal against the above-mentioned decision of the Court of First Instance within the time limit.
8. Supreme Court 14. By the Law Department dated 18.01.2016 and dated 2015/14663 E., 2016/436 K. according to its decision No. 47 of the Condominium Ownership Law No. 634 (KMK). according to the article, if the entire main structure has been destroyed, the condominium ownership on the main real estate has ended spontaneously, in the concrete event; Garden on the condominium board in the main immovable quality of masonry apartment is 70 m2 parcel of immovable 132,37 No. 16 name the subject matter of the case by the expropriation has been registered on behalf of the Treasury through expropriation, expropriation after the process, the case collapsed and the new parcels of immovable immovable on the subject matter of the masonry building by taking the number of parcel No. 47 of 70 m2 in masonry 638,63 name again as immovable garden apartment with total area of land occurred qualification record, the process of expropriation after all, the main deed of the immovable have been completely destroyed, although the new condominium in the record if he continues on the case of immovable property parcel No. 47 70 the name of the main structure is completely devastated because the spontaneous end of property ownership, therefore, one of the stakeholders of the share of his real estate to a third party to sell 4721) Turkish civil law (TMK)’s 732. the decision was overturned on the grounds that ”it is not considered correct to make a decision in writing without taking into account that other stakeholders may exercise their pre-purchase rights in accordance with the article”.
The Decision to Resist:
9. Istanbul Anatolia 13. The decision of the Court of First Instance dated 04.05.2017 and dated 2016/281 E., 2017/146 K. by his numbered decision; The response letter dated 07.03.2017 according to the land registry Directorate of Maltepe, Istanbul, Maltepe district, is located in küçükyalı quarter floor, a wholly-owned parcel 638 47 No. 15885 name,area is 63m2 with masonry basement garden apartment with 2 independent parts of the main plot in the nature of immovable 60/2000’e is owned by Jasmine on 19.07.2013 while keserli where it is sold to, sold by the defendant on that person …a 01.10.2014-fold, a wholly-owned in the direction of the main immovable the absence of any dispute between the parties collapsed, however, the condominium ownership is still ongoing on the land registry records and the decision to resist has been made on the grounds that the condominium ownership has not been abandoned and that the right to pre-purchase is not possible to be used in accordance with the provisions of the Condominium Law in this regard.
Appeal of the Decision to Resist:
10. The decision to resist has been appealed by the plaintiff … and the principal respondent … and their friends’ deputies within the time limit.
II. DISPUTE
11. The General Board of the resistance path from the front of the conflict with the law; parcel No. 16 after the expropriation of immovable 70 contentious name a portion of the real estate by taking the number of new parcels (parcels name 47 70) masonry record is created in the deed, although the qualification garden apartment again, in the face of the collapse of the building in the main land, property ownership ended and he didn’t spontaneously, Plot No. 2 according to the result to be reached with a basement here 60/2000 immovable independent Section 3. it is collected at the point of whether it is possible for the plaintiff and the primary respondent to exercise their pre-purchase rights due to the sale to the person.
III. reason
12. A pre-emption right is a right that gives other stakeholders the authority to purchase that share first if a share in real estate subject to the provisions of shared ownership is sold to a third party. This right arises as soon as the shared ownership relationship is established and becomes available when the share is sold to a third party. Thus, it is aimed to prevent foreign persons from entering the real estate as stakeholders and to divide the real estate into smaller parts. Article 732 of the Turkish Civil Code No. 4721 (TMK). the definition of the right to pre-purchase is not included in the article, but it is regulated in which case it will be used. Indeed, in the said article, “If a stakeholder in the shared ownership sells his/her share of the real estate to a third party in whole or in part, other stakeholders may exercise the right of pre-purchase.” is included in the statement.
13. In this context, the basic relationship necessary for the exercise of the legal right of pre-purchase is the shared ownership relationship. Right here, the subject of contention in the plots requested the cancellation of name deed in the records of the stock 70 47 condominium law No. 634 (KMK) according to the provisions of section, was registered as an independent since it is beneficial to focus on the establishment and termination of the condominium situations.
14. Condominium, 3rd of KMK. in its article, it is defined as ”a private property connected with the share of a land plot and common places in anagayrimenkul” and is subject to Article 1 of the same Law. in the article, the floor of a completed structure, apartment, business, office, shop, store, cellar, and storage areas are separate from the ones suitable for use in on itself, or joint owners of that property by the owners, in accordance with the provisions of this law, the Independent stated that property rights can be established. The whole of the real estate subject to condominium ownership is “anagayrimenkul”, only the main building part is “anagayrimenkul”, the main building is suitable for use separately and on its own, and according to the provisions of this law, the parts that are subject to independent ownership are defined as “independent part” (KMK m. 2/a).
15. Condominium can be installed primarily in reinforced concrete (masonry) structures. All non-masonry structures cannot be subject to condominium ownership (KMK m. 50/last). In the same way, condominium ownership cannot be established in buildings built in violation of the Zoning Code. On the other hand, in order to establish condominium ownership, the structure must be completed, not condominium ownership, a floor easement can be established on the building that is being built or will be built in the future (KMK m. 1/2. sentence). Condominium ownership is carried out by the will of the owner or owners of the immovable property, by a court decision (KMK m. 10) or it can be installed based on floor altitude (KMK m. 14/3).
16. The termination of condominium ownership is between KMK’s 46 and 47. it is regulated in its articles. Condominium ownership ends with the destruction or expropriation of the condominium together with the land plot of the main building or the destruction of the main structure by the will of the condominiums. The fact that the floor owners terminate the floor ownership of their own free will is due to the deletion of the registry entry in the log (KMK m. 46/1). In case of complete destruction or expropriation of the main real estate together with the land plot, the condominium ceases to exist, the deletion of the registration record is made in accordance with the general provisions (KMK m. 46/5). 47/1 of the Code. in its article, it is regulated that condominium ownership will end spontaneously if the entire main structure is destroyed. Dilapidation means ”there is no public works left, it has become a state of destruction, it is destroyed, it is destroyed” (Turkish Language Institution Dictionary). In order for this provision to find an application area, the entire main structure must be dilapidated, and condominium ownership does not end spontaneously if part of it is dilapidated (KMK m. 47/2). In the event that the main structure is completely decimated, the condominium ownership ceases, but the shared ownership of the land share continues.
17. As for the study of the concrete event in the light of the statements made; parcel No. 16 name the subject of contention with a garden 70 m2 surface area 771,00 immovable stone and brick condominium apartment building skills and translated into registered on the title deed, while immovable by the Regional Directorate of the Ministry of transport about DLH Marmaray Gebze-Haydarpaşa, Sirkeci-Halkalı commuter rail line and the construction of improving the Bosphorus tube (Marmaray project) due to 12.5.2004, dated 25460 published in the official gazette, the decision of the Council of ministers in accordance with Article 27 of Law No. 2942 of law 2004/7255 different 4650. in accordance with article 2 of the Eagle (Closed), in which a decision was made on expropriation in a hurry. The decision of the Court of First Instance dated 28.02.2012 and dated 2009/54 E., M2 132.37 K 2012/94 by the decision of the letters A and B shown with science experts and land on the part of the registration cancel the registration on behalf of the Treasury where the decision is made, the verdict have been nationalized after the part remaining after the parcel number Part name excrete 70 47 638,is 63m2 with area, garden stone and brick condominium apartment building skills and continues on 09.04.2012 the way, it was observed that the deed has been registered.
18. From the content of the file, after the expropriation of immovable portion, dated 05.03.2013 among the apartment owners held a “public commitment” do not open the case of improper disposal of the document entitled Suyu, whether they would sell their share to someone else, outside stakeholders, and similar matters agreed upon by the owner of shares that are subject to the demand of the plaintiff and Jasmine on 19.07.2013 keserli purchasing a Keserli sold by the defendant on 01.10.2014 Jasmine, Maltepe district municipality (Account Affairs General Directorate) polling officers issued by 18.07.in the document titled “Roll Call Receipt” dated 2014, at the address specified in the petition dated 07/18/2014 and numbered 668, it was understood that the parcel was empty, it was found that there were no structures on it, it was recorded that the entire main structure on the main building was destroyed.
19. Although each main building have been destroyed all of the records for the individual sections are likely to have condominium continues in the manner above (15-16), as stated on reinforced concrete structures completed property ownership can be established, main building is completely ruined, in case of property ownership will expire, given that the records be given to the value of the aforementioned, the main building on the plot it is without doubt that will continue to be ruined share with share ownership.
20. As of this moment, since it is understood that the condominium ownership on the immovable property numbered 70 and 47 parcels subject to the lawsuit has ended spontaneously and the shared ownership on the land share continues, if one of the dec in the immovable property sells its share to a third party, TMK 732 of TMK 4721. in accordance with the article, it is necessary to make a decision according to the result by conducting research and examination in this direction, taking into account that other stakeholders can exercise their pre-purchase rights.
21. As such, it is necessary to comply with the decision of the local court to overturn the Special Chamber adopted by the General Assembly of the Law, while resisting the previous decision is contrary to the procedure and the law.
22. Therefore, the decision to resist must be overturned.
IV. result:
For the reasons described;
The decision of the plaintiff … and the principal respondent … and his friends to resist the adoption of appeals of the deputy for reasons described in the decision to disrupt the Special Chamber of the provisional Article 3 of the Civil Procedure Code No. 6100. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. in accordance CORRUPTION,
Upon request, the advance fee of the appeal will be returned to the depositors,
440 of the same Law. in accordance with the article, it was unanimously decided on 05.03.2020 that the way to correct the decision would be open within fifteen days from the notification of the decision.
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