General Assembly of the Law 2017/1750 E. , 2019/321 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
Menemen dec. 1 At the end of the trial between the parties for the case “cancellation of title deed registration, abandonment of usufruct right”. The decision issued by the Court of First Instance on the refusal of the case due to the statute of limitations dated 27.09.2013 and dated 2012/857 E., 2013/641 K. the decision No. 14 of the Court of Cassation is appealed by the deputy plaintiff. The Law Department has a certificate dated 14.05.2014 and dated 2014/2616 E., 2014/6369 K. by his numbered decision,
“…The case concerns the cancellation of the title deed based on the contract of faith and the request for registration.
The defendant has defended the dismissal of the case.
The court decided to dismiss the case due to the statute of limitations.
The decision was appealed by the deputy plaintiff.
A believer’s transaction is a transaction involving the transfer of a thing or right covered by an asset by a believer to create or manage collateral, and the believer uses the thing subject to belief in accordance with the conditions in the agreement on faith, and when the goal is realized, returns it to the believer in a certain way.
With a credible transaction, the believer transfers the right of ownership or receivables that he owns to the believer in a lucrative transaction, but the debtor also puts him under certain obligations with a contract.
The believer forms the parties to the transaction, the believer and the believed. A person who transfers a right or object to a person he trusts as a believer is called a “believer”. A person who uses the transferred right or object for his own benefit, directly and indirectly, as a right of his own, is also called a “believer”. If the right or object that the believer gives to the believer as a believer is defined as “the thing that is the subject of belief”. In a credible transaction, the parties to the winning transaction and the parties to the debt-bearing agreement are the same.
The believer in the transaction is obliged to comply with the conditions agreed upon when using his right, transfer the right or object back to the believer (or the third person shown by him) when the goal is realized or the time expires. A believer transaction is a contract that provides the person who made the winnings, that is, the believer, the right to ask for the return of the winnings when certain conditions have been met. If this obligation is not fulfilled, it may be requested to fulfill the provision through a lawsuit.
The contract of faith can only be proved by written evidence in accordance with the Decision of the Supreme Court of Cassation No. 20/6 dated 05.02.1947 to Merge the Case Law. This written evidence must be a document that the parties will bring and bear their signatures.
Although it does not have any written evidence of such a nature that is described between the parties to the dispute would signify the end of all but this situation is not considered sufficient to prove out the other side (which is unsigned but believed to be written manually by a promissory note or a letter, written with a typewriter or computer although it is believed, which bears the initials of the document, duly ratified bonds, such as fingerprint or sealed) “evidence of the beginning” if you have a document in the nature of 6100) HMK of 202. in accordance with its article, the contract of faith can be proved by any evidence, including a “witness”.
If there is no written evidence or “the beginning of evidence”, the confession of the contract of faith (HMK m.188) the oath (HMK m.it is also possible to prove it with conclusive evidence such as 225 et al). If the plaintiff relies on the evidence of the oath, the court must remind the plaintiff of this right.
146 of the Turkish Code of Obligations No. 6098, since a special statute of limitations is not provided for cases arising from the faith agreement. in accordance with the article, the statute of limitations for cases arising from the contract of faith is considered to be ten years.
As for the concrete event in the light of these principles;
The plaintiff asked Germany to send money and power of attorney to the defendant’s brother and get him real estate, while the defendant’s brother requested cancellation and registration of the title deed by claiming that he bought real estate numbered 963 parcels with the money he sent without using the power of attorney and registered it on his behalf. HMK’s 33rd. according to the article, it is the duty of the judge to tell the events in a case and to make a legal characterization to the parties. In this case, the legal nature of the case is the cancellation and registration of the title deed based on the faith transaction. The court decided to dismiss the case due to the statute of limitations. The important thing here is to determine when the statute of limitations will start. 149 Of the Turkish Code of Obligations. in accordance with the article, the statute of limitations also begins to operate from the date when the receipt becomes desirable, in other words, the applicant loses hope for a waiver. The ten-year statute of limitations provided for these cases has not yet expired, since the plaintiff will be deemed to have lost his waiver hope on the date of filing the lawsuit.
In this case, while a provision should be established by entering the merits of the work by the court, it was not considered correct to decide to dismiss the case due to the statute of limitations, so the provision had to be overturned.…”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and turning the file back to its place.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
The case is related to the request for cancellation of the title deed and the abandonment of the right of registration and usufruct.
The plaintiff’s attorney the defendant with his client’s brother, who reside in the defendant’s real estate clients advice on their own behalf Germany province Izmir, Menemen District, located in the village koyundere, 963 skilled real estate attorney for the defendant to buy the parcel number field and sent the money through the bank ETL 50.000.000, the defendant’s attorney never sent the money from the client into the process Selahattin Polat Hatice steel and registered in the name of the premises in question the move, which is stipulated in the contract dated 1828 sales Journal number share 4/12 22.06.1992, again, in the same real estate, Reyhan Arabacı’s 2/12 share was taken with a 2013 evmiye sale agreement dated 17.07.1992 and registered a total of 6/12 share in his name in the title deed, the defendant soon left the usufruct right of this share on the bare ownership of the transaction dated 25.12.1992 and 3614 evmiye and his wife’s uncle’s son Sadik Gönç in the title deed sales are transferred by showing; having learned that the real estate that he thought was taken on his behalf by sending money and power of attorney was actually taken on his behalf by his brother, whom he made a proxy, his client delayed saying that he wanted the real estate transferred on his behalf, but the defendant would transfer the shares he purchased, as a result of his client’s insistence, he transferred his client’s 3/12 share of the bare ownership of the real estate dated 14.12.1995 and with a sale transaction of 4551 evmiyeli, the defendant … and his client as a result of the reconstruction of the shares of the immovable property subject to litigation; the defendant’s attorney misconduct, citing that it’s it all for yourself province of Izmir, Menemen District, Koyundere Dark, 963 parcel, parcels 3 and 4 4101 island, island 4220 plots 3 and 4 3/12 6/12 registered on behalf of a defendant in usufruct and bare ownership of shares shares with each name each 4224 all of the rights 1. the rights of usufruct shares shares ownership with the naked 92/2401 46/2401 parcel shall be cancelled and the decision on behalf of the client should be given a registration is requested.
Defendant’s Attorney, his client proxy by the misuse of the task if it comes to the case in any of the processes specified in the petition that the plaintiff’s registration request has not and you will get muvazaa can’t help but demand could also claims the statute of limitations had passed in the case of the Will, and to be deceived by decreasing the error of the deed, the plaintiff whole, not half-establishing a right of usufruct on land and on the transfer of shares of the claims its one-year statutory limitations is subject to, the plaintiff has to prove that the general power of attorney given by the plaintiff to his client for the follow-up of his affairs in the past years was given for the purchase of the real estate subject to the lawsuit, the plaintiff claims that the title deeds made in 1992 and 1995 were fraudulent and made in order to deceive him, the plaintiff even after 1995 sent money to his client and followed his work the, stating that the absence of dismissal from surrogacy by the plaintiff from the date of becoming a surrogate until today needs to be explained, that there is no connection between the receipt of real estate and the power of attorney given by the plaintiff to his client, and thus there is no abuse of power of attorney, he asked to decide on the dismissal of the case.
According to the local court, the plaintiff learned on 14.12.1995 that the 3/12 share was transferred in violation of the power of attorney agreement, and the case was filed on 126 of the Code of Obligations No. 818 as of this date. article 125 of the Code of Obligations No. 818 or within five years stipulated for power of attorney contracts. it was decided to refuse it on the grounds that it was not opened within the ten-year statute of limitations provided for in the article.
Upon the appeal of the plaintiff’s attorney, the decision was overturned by the Special Department on the grounds written in the title section above.
A decision was made by the Local Court to resist on previous grounds.
The decision to resist was appealed by the deputy plaintiff.
The dispute that comes before the General Assembly of Law by way of resistance is collected at the point whether the plaintiff will have lost his hope of ferağ on the date of 14.12.1995 or on the date of the lawsuit, when the partial execution takes place; according to the conclusion to be reached here, whether the plaintiff has filed his case within the statute of limitations.
As is known, Article 33 of the Civil Procedure Code No. 6100. according to the article, the judge is bound only by the material cases and the results of the claims put forward by the parties in a case and is obliged to decide the claims in the claim and defense by formally applying the laws, not limited to the provisions of the law on which they are based and their legal qualifications. From the point of view of determining the rules to which they will be subject, as well as their impact and consequences, the legal nature of the claims expressed by the parties is of great importance.
In this direction, first of all, it is useful to explain the concepts of a faith transaction and a power of attorney agreement.
The contracts of faith derive their source from the Decision of the Supreme Court No. 20/6 of 05.02.1947 on the Unification of Case Law.
In the said decision; It was discussed whether the muvazaa and nam-ı müstear claims, which are possible and valid according to the old law, can be heard about immovable property after the Civil Code comes into force.
In the decision cited various reasons and purposes for real instead of an immovable in a contract to another record Malik Nam and contracts instead of one that can be shown to a third party, in such cases, your attorney and the client on his own behalf in his savings account as a legal status, can be driven from third parties for any purpose or the purpose of hiding the truth, “hide malicious and unfair, except a case to be opened according to a specified probability, really, on the basis of an existing right or protection of a right hand, it will carry a replacement or quality of; in this case, the greater the trustees of the property belonging to the primarily for the purpose of correction goes, even though it because it is contrary to the provisions of the representation of the preservation and continuation of the law of obligations because that could hukmolunama “client execute his obligations when various against the Attorney, your attorney will take the account of the client on his own behalf in the third person and the client shall be verified after it was mentioned that this idea has as a result of provision, Nam-I pen-and was able to prove with written evidence that the rest of the case was decided.
A believer transaction can be defined as contracts in which a believer undertakes to transfer a right to a believer for a certain period of time or purpose, to use the believer in accordance with the orders and instructions of the believer, and to transfer the right back to the believer when the goal is realized or when the period expires (Özkaya, e.: Inanlı Içlek ve Muvazaa Cases, Ankara 2004, p. 25).
In judicial decisions, the contract of faith is described as an agreement containing an obligation to transfer the right obtained by the believing party to the believer or a third party after the purpose pursued by the parties has expired or a certain period has elapsed (HGK, dated 13.5.1992 and dated 1992/14-249 E, 1992/323 K ).
By means of a faith contract, the believer transfers the right of ownership or receivables to the believer (fiduciary), and by means of a debtor contract, the rights and powers of the believer are limited. He is obliged to comply with the agreed conditions when using his believed right, to return the right to the believer again when the goal is realized or when the time has expired.
The Statute of limitations on which these transactions will be subject to, such as faith transactions, is also not regulated in our Law. 125 of the Code of Obligations No. 818 (BK) of the right to sue for compensation, both in the scientific field and in practice, for the return of the subject of faith, if the subject of faith has been transferred to a third person, if the subject of faith has been taken out of the hands of the believer. it is accepted that it is subject to the 10-year statute of limitations in the article.
The statute of limitations begins to work on the date when the receivable is due, in other words, on the date when the thing in question must be returned. If it is believed that the date of extradition has not yet come, and the person is right to keep the issue of faith, there is no way to start the statute of limitations (dated 15.04.2011, 2011/13-14 E of the General Assembly of the Law)., 2011/189 K. and dated 29.01.2014, 2013/11-376 E., 2014/49 K. numbered).
The power of attorney agreement is concluded in accordance with Article 386 of the Code of Obligations No. 818. article 1. in the paragraph “Power of attorney is an agreement between him and the attorney, the administration of the work assigned to him in the office of the contract or the performance of the service he has performed in accordance with. it has been described as “.
With the power of attorney agreement, the deputy is under the obligation to perform work against his client. It can also be a service act, a business act in a broad sense, an activity in favor of someone else. In the power of attorney for legal acts, the deputy is obliged to perform legal actions in the interests of his client, in particular, to acquire, use and transfer subjective rights (Yalçınduran T.: Fees in the Power of Attorney Agreement, Ankara 2007, p. 35).
Elements of the contract of attorney from this definition: the deputy assumes the obligation to see a job; the obligation to see a job is made for the benefit of someone else; the obligation to see a job is fulfilled in accordance with the client’s will; the deputy assumes the act of action, not the result of the action; the deputy acts independently in fulfilling the debt to see a job; the fee (which this element is not mandatory) can be listed in the form.
As a rule, the scope of the power of attorney agreement is determined according to the consent of the parties, depending on the general provisions of our Code of Obligations and general principles. However, it is not legally possible for personal rights to be the subject of a power of attorney agreement. In accordance with the principle of freedom of contract, a power of attorney agreement can be concluded on any issue other than this mandatory rule. If the will of the parties does not guide the determination of the scope of the contract or if this issue is not addressed in the contract, see Article 388 of the BK. article 1. according to the regulation of the paragraph, the scope of the contract will be determined according to the nature of the work to which the contract relates (acts as taalluk).
In solving the case at hand, in particular, it is necessary to focus on the “debt of accountability” of the deputy to the deputy.
392 of BK. article 1. in accordance with the provision of paragraph 1, at the client’s request, the proxy must provide him with an account of the work that is the subject of the power of attorney agreement and that he has done. This debt arises from the establishment of the contract and is not absolutely dependent on the performance of the contract, according to the situation, it can continue after the expiration of the contract.
Accountability debt, the attorney about the role of the financial issues, to clarify, and received advance payments received goods or about spending money, and costs to present to the client and answer documents where the matters that uses the corresponding obligation. This is also a kind of obligation to provide information in a sense as a requirement of loyalty debt.
The debt of accountability is a natural consequence of the fact that the proxy sees a job belonging to someone else; indeed, the person whose job is seen (the client) needs to know whether the job has been started, how the job has been executed and concluded.
Thus, the debt of accountability, in its broad sense, manifests itself as an obligation to provide general information. The deputy is obliged to inform the client about the situation not only at the end of the work, but also during its execution.
In the contract of attorney, the duty of accountability of the deputy arises with the establishment of the contract of attorney and continues during the execution of the work by the deputy and at its termination. It is not a matter that depends on the performance of the contract. In addition, if necessary, this debt remains after the expiration of the power of attorney agreement. So much so that after the proxy agreement expires, if the client asks the proxy for a repetition of the accountability, the proxy must fulfill this debt again. However, in this case, the client will provide the proxy with the costs incurred by the proxy in this regard and the cost of the labor spent on this work.
When it comes to all these descriptions within the scope of a concrete case; and the plaintiff’s petition dated 27.09.2013 during the preliminary hearing, the defendant authorized the purchase of real estate with power of attorney regarding the subject of the lawsuit, and in case of sending money, the defendant purchased the estate of the alleged deed of cancellation of registration, the demand on its own behalf and, considering a concrete case arising from the contract and registration of the deed of cancellation of faith in the prompt, not based on the cause of the abuse of the agency contract and the deed of cancellation of registration where the law was adopted by the General Assembly attempted prompt.
At this point, it will be appropriate to make a brief statement about the concept of the statute of limitations and the application of the statute of limitations in the power of attorney agreement.
The statute of limitations, which is a technical concept in private law, means that the period adopted by the law in the acquisition or loss of a right has expired.
The statute of limitations is due to legal proceedings that lose the ability to sue and execute due to the non-use of the right within the periods established by the law, as well as the defii of the counterparty and have an impact on the rights. If the debt expires, the receivable will not expire, the possibility of obtaining the creditor’s receivables through litigation will disappear. In other words, the debt will become an incomplete debt (natural debt=obligatio naturalis).
As for the collection of receivables that have expired, the state ceases to exercise its own power, so that the arbitrariness of whether the said receivables will be paid is left to the will of the debtor. However, it should be noted that the fact that the receivable has just expired is not enough for it to turn into an incomplete debt; for this, the borrower must put forward a definition of the statute of limitations for the creditor in the case of the receivable filed against him. Otherwise, the statute of limitations cannot be officially taken into account by the defii judge. In this regard, the 140th Edition of BK. in the article ‘Mururuzaman’, the judge cannot take the mururuzaman into the evil eye by himself unless it is dermeyan.” the provision has been included.
The existence of a debt subject to the statute of limitations, the fact that the debt is due, the expiration of a certain period in the law, starting from the date when the debt is due, can be counted as the expiration of a certain period. However, with the combination of these three conditions, the statute of limitations will have expired, and the defendant who put forward the statute of limitations will have stated that the plaintiff’s right to receivables has been born, but he does not have to perform dec performance because it has expired, and thus he can ensure the rejection of the case.
It should immediately be noted that the debtor (defendant), who claims that the statute of limitations has expired, is also under the burden of proving that this period has expired.
The law does not regulate which rights will be subject to statute of limitations and which ones will not be subject to a specific system. According to the current legal order and legislation, all receivables, whether arising from debts, trade, goods and public law, are subject to the statute of limitations.
125 OF BK. a general provision on the scope and duration of the statute of limitations has been referred to in the article. According to the provision of this article; “If there is no provision in this law in any other way, each case is subject to a ten-year notice period. it has been said that “.
128 of BK. in its article, the statute of limitations on contractual receivables is emphasized by saying that, in principle, the receivable begins to function as soon as it is due. The date of default is not important in this regard
Since the concept of “exemption” here means that it has become claimed and litigable by the creditor, it is necessary to have a receivable that was born first.
However, if the exemption of the receivable is subject to a notification condition, the statute of limitations begins to apply from the moment this notification can be made. Indeed, BK has 128. according to the article, mururuzaman starts at the time when the receivable is due, and if the exemption of the receivable is subject to a notice, mururuzaman starts to process from the day this notice can be given.
101 OF BK. in accordance with its article, the fact that the debt is due means that the time for its performance has come. If the fulfillment of the debt cannot yet be requested, there can be no mention of an outstanding debt.
See BK’s 74. if, according to the article, the fulfillment of the debt is not tied to a period of time, the receivable becomes “muaccel” with the birth of the debt.
If the performance of the debt is due, the statute of limitations for the creditor begins to apply from the date of maturity.
For non-due repayment debts (for example, a power of attorney for the management of a fortune), the debt does not start on the date of conclusion, but from the date of termination of this relationship. In this regard, it is also accepted as the dominant opinion in the doctrine that the statute of limitations should also start from the date the relationship ends.
The legislator BK. 128. in the article, in order for the statute of limitations to begin, the debtor has deemed it sufficient to leave the default basis and make the receivable muaccel.
125 OF BK. unless there is a provision to the contrary in accordance with the article, receivables are subject to a ten-year statute of limitations in principle. Of the UK. 126. in its article, the exception to this principle is regulated. Accordingly, some receivables expire within five years.
If the subject of the deputy’s obligation to give what he receives is money, see Article 393 of the BK. article 2. according to the paragraph, the deputy is also obliged to pay interest on the money embezzled (Tandogan, H.: Law of Obligations, volume II, sh.506-508).
In the power of attorney agreement, the obligation to grant and the client’s right to request them related to the fact that the attorney returns what they have received to the client is defined in Article 126 of the BK. According to the provision of the fourth paragraph of Article, all receivables arising from the power of attorney agreement are subject to a five-year statute of limitations.
It is indisputable that the statute of limitations on contractual receivables will start from the date when the receivable is due. See BK’s 74. according to the article, if the fulfillment of the debt is not tied to a period of time, the receivable will be muaccel with the birth of the debt, again in Article 128 of the BK. in accordance with the article, the statute of limitations begins on the date when your receipt is due.
In this sense, the arrival of the moment of performance is called the muaccel of the debt. The creditor can sue the receivable only after that, the statute of limitations for the receivable begins to apply from this moment on.
Considering the concrete event in the light of all these explanations:
The case is related to the decommissioning of the title deed and the registration request arising from the abuse of the power of attorney, and as mentioned above, among the most important elements of the power of attorney agreement is the attorney’s obligation to account. The deputy is obliged to give an account of his work and return everything he has acquired to his client’s name and account, as well as keep what he has received until he returns it. The obligation of the proxy to be held accountable arises with the establishment of the proxy agreement and continues during the execution of the work by the proxy and at its termination. For this reason, the statute of limitations on the deputy’s obligation to return what he received does not work as long as the power of attorney agreement lasts. In other words, the exemption from the refund debt begins with the accountability of the proxy or the termination of the contractual relationship (dated 2011 of the General Assembly of Law and numbered 2011/13-1611 and 2011/276). In the concrete case, there are also no documents among the files indicating that the defendant, acting as a deputy, has fulfilled his obligation to deconstruct
As it happens, there is no mention that the statute of limitations has expired in the case at hand. It was filed during the trial period and the basis of the work was examined, the evidence of the parties should be collected and an appropriate decision should be made as a result, but it is not correct to decide to dismiss the case with a bet because the statute of limitations has expired.
The law in the General Assembly during the negotiations, the plaintiff’s attorney in his capacity as the defendant in the case because it does not have a process in relation to the assignment of the immovable, in the case “proxy task abuse” was based on it cannot be accepted that the legal cause of the plaintiff because the defendant has withstood by specifying the relationship of faith to send the money to the case at hand, in the case where the plaintiff’s lost faith at the moment of the time limit will begin processing on ferag, therefore, the opinion that the provision should be overturned in accordance with the decision to overturn the Special Chamber, which indicates that the case was opened within the statute of limitations, was put forward, but this opinion was not adopted by the majority of the Board.
In that case, the decision to resist on the different grounds described above should be overturned.
CONCLUSION: Provisional Article 3 of the Civil Procedure Code No. 6100 states that the decision of the plaintiff’s attorney to resist the acceptance of appeals is based on these different grounds and reasons described above. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. according to article 440 of the same Law, upon request, the refund of the advance appeal fee to the depositor. according to the article, the decision was made by majority vote on 19.03.2019, with the path to correction of the decision being open within fifteen days from the notification of the decision.
VOTE AGAINST
The plaintiff’s attorney the defendant to the plaintiff’s parcel No. 963 purchase real estate power of attorney and had sent money to his brother, but without taking action with a lawsuit in history 17.07.1992 22.06.1992 the defendant’s attorney and the out-of-6/12 by purchasing shares in your own name on the right of usufruct of shares total share name registration provides the aforementioned and left naked in the history of the ownership transferred as collusive relative 25.12.1992 loyal, and subsequently conveyed to the plaintiff, stating that the real estate would be loyal despite, usufruct by the defendant’s fraud, even though she took ownership stake in itself is already naked and 3/12, 3/12 naked on the ownership of shares and immovable 14.12.1995 devrettirdig who thinks that the plaintiff, the plaintiff’s condition after learning of the defendant on the whole of the transfer of Stock Ownership and the right of usufruct half naked although drag has demanded of the defendant, the defendant abused the mission of collusive fraud and proxy transactions, meanwhile, is partially the result immovable to be subject to a zoning application No. 963 parcel 4101 Island 3, 4; claiming that 4220 ada 3, 4 and 4224 ada 1 zoning parcels were formed; He requested registration on behalf of the plaintiff with the cancellation of the bare property shares and usufruct rights on behalf of the defendant in the specified disputed real estate.
As is known, Article 33 of the Civil Procedure Code No. 6100. in accordance with the provision “The judge shall officially apply Turkish law” provided for in the article, the duty of making a legal qualification in a case belongs to the judge. The judge is not bound by the statements of the parties regarding the legal qualification. The parties are obliged to report the events (material cases), and the judge is responsible for determining and determining and implementing the appropriate legal regulation for the reported material cases.
It should be noted immediately that in order for contracts aimed at transferring real estate ownership (sale, donation, trampling, etc.) to be valid, it is necessary to comply with Article 706 of the Turkish Civil Code., Article 237 of the Turkish Code of Obligations. (213 of the Code of Obligations.) and Article 26 of the Land Registry Law. as stipulated in the articles, the agreement must be made in an official manner. On the other hand, one of the principles of keeping the land registry is registration, another is the publicity (reliability) of the registry, another is the perfect responsibility of the Treasury, and the last one is that there is a valid legal reason, that is, the registration is not illegal.
On the other hand; the decision to merge with No. 20/6 05.02.1947 date and case law “in the case of the demonstration and the nickname can relax with written evidence, it would be appropriate”; and No. 8/7 case law to date 07.10.1953 merge with the decision, “the plaintiff, the existence of the deed record a bagit the relationship with the argument between them for his own name to be able to request to have it corrected MK.No. 634. that a bond (akdin) must exist in accordance with the article; it has been decided that a proof of a situation in which the plaintiff accepts that the law does not exist if it is understood from his statement that no such evidence exists cannot be considered by the judge (court)”.
In a concrete case the plaintiff, the defendant himself is sent with the money that was purchased on behalf of the real estate real Malik contends that the record was created, whether it is undisputed claim deed that is directed to record such a claim No. 20/6 05.02.1947 of date and should be considered as part of the case law it is without doubt that the decision to merge. Although it is in the acceptance of the parties that the plaintiff appoints the defendant as a surrogate; there is no legal action taken by the defendant in relation to the transfer of disputed real estate as the plaintiff’s deputy, and there is no mention that the legal reason for the “abuse of power of attorney” is based on such a case filed against the land registry with the claims specified in the petition of claim. As mentioned above, the sale of real estate is a condition of validity, and registration, which is one of the principles of keeping the land registry, must have a valid legal reason. The plaintiff sued the defendant for the purchase of immovable subject by specifying based on the relationship of faith to send the money to are; on one hand, buying real estate and real contentious malik by arguing that the defendant on the basis of formal registration and the registration on behalf of a sales contract, as opposed to the aforementioned contract was invalid, in other words, against the formal service providers “on the side muvazaa” is based on the claim; such claims in accordance with the aforementioned case law, the decision to merge with written evidence must be proven. However, an allegation of abuse of power of attorney can be proven by any evidence duly obtained. Again, the Decision to Merge the Case Law No. 8/7 of 07.10.1953, made in relation to cases of a similar nature to the concrete incident between husband and wife, “Dec..plaintiffs can also prove with a witness based on Article 293 of the procedure that there are power of attorney relations with their wives. However, the fact that the existence of this relationship has been proven does not grant them the right to request the registration of real estate in their name from the court, but the attorney’s compensation may be charged for opposing the commitment …”In the explanations, it is emphasized that the plaintiff cannot request registration on behalf of the attorney’s real estate acquired from a third party based on the proxy’s relationship. Otherwise the adoption of immovable property acquired in respect of the client’s own attorney in the name of property rights are under threat, in other words acting real property acquired by a proxy between the client and your relationship is based on can be sued for the right to own property, and it can be proved that the aforementioned regulations and with any evidence leads to the conclusion that it is clear that in the face of IBK is not acceptable.
If so, the need of formal assignment in real estate terms and The Shape of the land register in the process of keeping the validity of the principles, both numbered and date and date and 05.02.1947 No. 20/6 07.10.1953 8/7 case law in accordance with the decision to merge “real estate transaction that is conducted on behalf of someone else, the person who pays the price for someone else’s name that has been registered in the claim, the claim is driven forward format and material facts, “according to the process of faith-faith agreement”, “the pen aka” or “Covenant-on the side at my job muvazaa-party of collusion” it should be considered and evaluated accordingly. As a matter of fact, the Supreme Court of Cassation, which is responsible for the appeal and examination of decisions made in cases of cancellation and registration of land titles based on the legal reason for the abuse of power of attorney, is 1. Ongoing settled in the jurisprudence of the law department in a consistent manner all along “client sent sales price for the purchase of the immovable, and appointed his deputy, attorney misconduct estate registered in their own name” shaped drop the allegations in the case of cancellation deed and registration of faith “based on processing or the party, collusion, cancel the deed and registration of the trials described as” are evaluated by. (Precedents: Supreme Court 1. Amendments of the HD dated 26.12.2005 and numbered 12473-13753, dated 22.05.2006 and numbered 4130-5812, dated 22.11.2018 and based on 2016/348-Decision numbered 2018/14790)
Therefore, in the case at hand, an assessment should be made by concluding that “based on the contract of faith, the cancellation of the title deed and registration and the abandonment of the usufruct right are requested” in terms of the content of the petition of claim and the way the claim is advanced.
In this context, since the dispute subject to resistance has been collected at the point where the statute of limitations on the case has been met, no special statute of limitations has been provided for in cases arising from faith contracts, 146 of the Turkish Code of Obligations No. 6098. according to the article, the statute of limitations must be determined. In the said article, the provision ”each receivable is subject to a ten-year statute of limitations unless there is a provision to the contrary in the law” is provided for; 149 of the same Law. also in the article “the statute of limitations begins to work with the fact that the payment you will receive is due. In cases where the payment of the receivable depends on a notification, the statute of limitations begins to apply from the day this notification can be made,”the beginning of the statute of limitations has been arranged. It is emphasized that the statute of limitations for cases based on the contract of faith in accordance with the established Supreme Court case law will begin from the date of “loss of hope for a waiver”, and essentially this issue is also accepted by the local court. However, there is a dispute between the Special Department and the Local Court in terms of determining the date when the hope of decriminalization was lost in a concrete event.
From the contents of the file and all the evidence collected; Since there is no collateral action taken by the defendant against the plaintiff in relation to the real estate subject to litigation, partial statement cannot be mentioned, nor is it alleged that the defendant had a notification or action to perform the performance or to reject the plaintiff’s waiver request. In fact, the defendant’s deputy stated in the response petition that the plaintiff can file a claim for receivables according to the enrichment provisions for no reason at most, and the claims for receivables are subject to a statute of limitations according to the transaction dates. The plaintiff stated in the lawsuit petition that the defendant was delaying himself about the assignment. Within the scope of the file, there is no evidence and signs that the plaintiff has lost his ferağ hope before the date of the case. If so, it is necessary to recognize that the plaintiff has hope of obtaining the right to property in accordance with the contract of faith by the date of the lawsuit.
In these circumstances,; the above-mentioned legal regulations and the event described with the characteristics of the concrete in terms of the nature of the case, the plaintiff’s ferag lost hope when the deed at hand, and cancel the trial opened registration, a different expression as of the date of the lawsuit because the statute of limitations has expired, and thus had lost hope ferag by the court, while not mentioning the basics of considering due to the statute of limitations of the study, the case of the denial of Private decision to resist, considering that the decision is not correct in line with the decision of the apartment, I am in the opinion of corruption, i cannot participate in the majority’s decision to overturn it on different grounds.
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