General Assembly of the Law 2017/1611 E. , 2018/1128 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial held due to the “decommissioning and registration of land titles” case between the parties, Hatay 1. 20.12.2012 day and 2009/129 E, which were issued by the Court of First Instance on the acceptance of the case., 2012/652 K. the numbered decision is appealed by the deci-sion of the defendant land owners and the deputy defendant contractor, and the Supreme Court of Cassation 23. The day of 04.10.2013 of the Legal Department and 3932.2013 of the E., 2013/6077 K. by his numbered decision,
“…The plaintiff’s attorney, the defendants in return for a share of land that exists between a construction contract, the contractor pursuant to the agreement between the defendant and the plaintiff, plaintiff’s common to construction costs, but the parts that are falling stock when construction is finished to the contractor setting forth whether the plaintiff has been transferred to independent half by land and half in the case statement of independent parts that are reported cancel the registration request and registration of shares on behalf of the plaintiff has prosecuted.
The defendant … his deputy asked for the dismissal of the case, arguing that the plaintiff did not perform his actions in accordance with the protocol, and the other defendant, the dec of the land owners, did not perform the actions of the defendant contractor.
The court decided to accept the case and pay the amount deposited to dec defendant on the grounds that the protocol between the plaintiff and the defendant contractor is subject to the decoupling provisions of the receivable, the plaintiff can also claim it to the defendant land owners, and the plaintiff has also stored the missing work price.
The decision was appealed by the defendants’ deputies.
A construction contract was dec between decedents … and other decedent land owners in exchange for a plot share for 07.08.2007 days, and the stages of the release of independent sections that will hit the contractor were also determined in the contract. On the contrary, an ordinary partnership agreement was signed between the plaintiff and one of the defendants dec the legal nature of 08.08.2008 days and it was decided that the construction should be carried out together. In the said contract, the land owners are not parties, and the addressee of the land owners, the person to whom they can make a request and who they are in debt to, is the defendant … Dec dec In the current case, since the plaintiffs of the ordinary partners dec requested to register shares from independent departments that the plaintiff … Dağlı claimed should be given to him, and it is understood that their title deeds are still on the land owners, there is no illegal aspect in the dec of the land owners in the case.
In that case, work to be done by the court, in the case cancel and claim deed being registered in the case of the independent departments, the defendant by the contractor 07.08.2007 land owners a hard time in return for a share of plot qualify it being determined according to the provisions of the construction contract as to whether or not the aforementioned as a result of the evaluation in accordance with the contract, the defendant’s rightful independent contractor, there is a section; in this case, it consists of investigating, evaluating whether the plaintiff’s conditions for filing a claim have been established in accordance with the contract dated 08.08.2008 between the plaintiff and the defendant contractor, and reaching a decisional decision in accordance with its conclusion.
Without taking into account the mentioned issues, it was not correct to establish a decisiveness in writing with an erroneous interpretation, a cautious acceptance of the legal relationship that you will receive from the plaintiff and the defendants … and an incomplete review, the decision had to be overturnedr…”
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 concerns the cancellation of the title deed and the request for registration.
The plaintiff’s attorney, the defendant, with the other defendants who are owners of land between the contractor 07.08.2007-time plot in return for a share of the construction contract that was signed according to the contract, the construction will be performed by the contractor, and in return, Apartment 8, provision was agreed on, the completion of construction, 1, 2, and No. 6 with the client that the defendant sold and the apartments were transferred to the new owners signed between the contractor 08.08.2008-time protocol client according to the plot with the contractor in accordance with the construction contract was signed between the owners of the plot in return for share, the defendant must be given to the contractor 1, 2, 6, 7, 8, 9, 10 No. 11 All rights and obligations of the apartments and the apartments are entitled to be joint with Malik than or equal to the client to the contractor for the construction of 136.605,00-TL paid, but the defendant in violation of the provisions of Protocol 1, 2 and 6, the price of the apartments in the sale of his client to the contractor that it did not fall into independent sections will be left at a rate of ½ citing registration, the right to request that was born, he demanded and decried decisiveness of registration of the half-shares of apartments No. 7, 8, 9, 10 and 11 to be given to the contractor in the building completed in accordance with the construction contract in exchange for the land share signed between the defendants on behalf of the plaintiff.
The contractor’s representative, the defendant, his client with other land owners of land between the defendant in return for a share of the client that the construction contract was signed, construction began on the portion of basic shelter after it is finished, the plaintiff accepted the offer of his client partnership, and the partnership with the protocol on 08.08.2008 that it was the plaintiff, the plaintiff will be made from the date of ½ percent of all expenses and revenues 8 of the protocol that they have in common. item installs itself acts he didn’t have to pay for trying to avoid paying the amount, the 136.605,00-TL paid the claim that isn’t true, that your client has made the construction substantially completed in accordance with the contract with land owners defended by specifying the dismissal, money order dated 21.06.2010 that are involved with the petition on behalf of the plaintiff in the case determined that the registration of independent parts Stock ¼ wanted to be.
The defendant, the deputy of the land owners, defended the decease of the case.
The court acts in accordance with the construction contract in return for a share of the contractor are met if the plot would dig individual rights, personal rights on the basis of this independent ownership of land left to him from the owner could ask for parts that are to be written in the name of the registration or the consent of the owner of the plot with the condition and assign to third parties without the consent of the personal rights that can both land and the contractor against the owner of the third person need to possess the right one could argue that it is personal, and the registration of ownership in the name of independent parts could ask for, land owners in return for a share of land between contractor and in accordance with the construction contract, the contractor should be given to himself, which is registered on behalf of the owner of the plot but still, 7, 8, 9, 10 and 11. independent, such as the registration on behalf of the department may request, according to the provisions assignment of claim, the plaintiff’s or the contractor’s rights and are considered to be the successor of that can argue against other defendants, the defendants on behalf of the owner of the registered land 7, 8, 9, 10 and 11. independent sections with the cancellation of the deed of record and registration in the Land Registry on behalf of the plaintiff stock ½ , the remaining share was decided to be transferred on behalf of the decedent land owners.
Upon the appeal of the defendant contractor’s deputy and the defendant land owners’ deputy, the decision was deconstructed by the Private Department on the grounds described in the title section above.
The local court, in addition to the previous grounds, partially assigns the contractor’s personal right to the plaintiff against other defendants who are the land owners, this is a guarantee of receivables made in accordance with Articles 162 and dec of the Code of Obligations 818, the case is related to the decommissioning and registration request caused by the contractor’s failure to fulfill its obligation to the plaintiff, whether the contractor has fulfilled its contractual obligations to the land owners is not the subject of this case, the other defendant with the defendant contractor of a mismatch between the owners of the land in the absence of such evidence, Private apartment where research is performed as specified in the decision of the prosecutor, the defendant contractor’s 07.08.2007-time they deserve the independent sections are determined according to the provisions of the contract and according to the results, it was decided to resist on the grounds that its decision has been given.
The decision to resist was appealed by the deci-sion of the defendant contractor and the deci-sion of the land owners.
Resistance to the law through the General Board of the conflict from the front: the plaintiff, a contractor with his 08.08.2008-time assignment of claims according to a protocol in accordance with the provisions, which are recorded on the deed of the land on behalf of the owner of immovable ½ can request the registration in the name of the stock, whether the plaintiff’s request of the owners of land and decided to investigate to determine whether conditions occurred at the point where according to the results need to be collected.
Firstly, it is useful to focus on the “construction contract for land share provision” and “construction construction contract for land share” and “debts of the contractor and dec dec owner” with the “work contract:
The work contract is in accordance with Article 355 of the Law on Obligations No. 818 (BK), which must be applied to resolve the dispute. (470 of the Turkish Code of Obligations (TBK) No. 6098.) in the article, “The exception is a contract in which one party (the contractor) refers to the manufacture of something in accordance with the semen that the other party (the owner of the business) undertakes to give. it has been described as “.
As a rule, the Turkish Code of Obligations No. 6098 (6098 p. TBK) 470. in his article (818 p. TALK., m. construction construction contracts, which are a type of work contract defined in Article 355), are contracts that impose debts on two parties involving mutual actions in exchange for the transfer of a share of land, which are a type of work contract dec
The main obligations of the contractor in construction construction contracts are the obligations to create a construction (work) and deliver this work to the owner of the work. Some other side debts arising from these two main debts and ensuring the performance of these debts in accordance with the contract are also the debt of performing the job well, the debt of doing the job faithfully and diligently in relation to the preparation of the work in accordance with the contract, the debt related to the tools and materials, the obligation of general notification, the debt of starting and continuing the job on time, and the debt of delivery, which is an important debt arising from it, the debt of takefful (Karataş I; Eser (Construction Construction) Contracts, Ankara 2009, p.99).
When the contractor fulfills his actions arising from the construction contract, he has a personal right to the land owner and may request the transfer of the title deed of the independent sections dec dec to him in accordance with the contract from the land owner. In accordance with Articles 162 and dec of the BK, he may also transfer and assign this personal right to third parties, provided that it is in writing, without the need to obtain the consent and consent of the landowner.
In such contracts in exchange for the specified debts of the contractor, the business owner also owes a fee by “transferring a share of the land” in exchange for the work created on the land as a dec decisiveness. In these contracts, the fee (price) that the business owner will pay is paid by the land owner as a dec. Due to the fact that such contracts are usually spread over many years, the achievement of the purpose in the contract is not possible with the fulfillment of this fee performance alone during the performance period. For this reason, some side debts must also be fulfilled by the business owner. These; suitable for the construction of a barrier on the land without legal and actual delivery without defect and of the land of obtaining the zoning and building permits, plans and projects in municipalities with their approvals to the Competent Authority of the contractor’s rightful independent finance the sales floor easement deed of partition for the supply of the establishment of the intake housing permits as needed for business and operations of the contractor, such as a power of attorney to be given a share of land specified in the contract, such as the transfer of liabilities.
As a rule, in types of contracts that impose debts on both parties, if one of the parties is not obliged to make a statement in advance, the debtor who does not perform his own performance will not be able to request the other party to perform his/her performance (Kılıçoğlu A.M: General Provisions of the Law of Obligations, Ankara 2012, p.581). This issue is covered by Article 81 of the BK. in the article ”A person requesting the performance of an agreement with reciprocal obligations must have fulfilled his own debt or offered to fulfill it, unless he has the right to resign for a period of time in accordance with the terms and nature of the agreement” regulated by the executive provision, the same issue is regulated by Article 97 of the TCC. it is also stipulated in the article.
However, the right is personal to him and the contractor, in writing, appropriation, which his successor, the third person of this right in order to argue against the land owner, as mentioned above, the act must be fulfilled the contract, the contractor installs itself exactly (Izzet Karataş, work contracts, 2004, s. 34 et seq.).
Deconstruction contracts for land share provision are also one of the types of contracts that impose debts on both parties, so the order of performance, that is, the question of which of the parties will be obliged to perform its performance first, is important. In such contracts, the contracting party, which is under the obligation to build a building first of all, must perform its performance in accordance with the contract, and then dec the owner of the land to perform its performance. In other words, first of all, the work in accordance with the contract should be done, and then the owner of the land plot should be requested to perform his/her dec.
The owner of the land plot can perform the decommissioning of the land share in different ways. The owner of the land plot can perform the decommissioning in different ways. It can perform this action either in the form of transferring the agreed land shares to the contractor when the construction is completed, or in the form of a gradual transfer of title deeds in accordance with the stage at which the construction is dec in the contract. In this second case, i.e. in the gradual transfer of title deeds, the contractor is entitled to request the deeds that have been decisively transferred at each stage from the landowner.
As a matter of fact, the same principles were adopted by the General Assembly of the Law on 24.02.2016 day and 2014/23-724 E., 2016/168 K., 26.02.2016 days and 2014/23-569 E., 2016/181 K. it was also emphasized in its numbered decision.
When these material law rules described are evaluated by revealing the concrete event;
Error 2 between the defendant contractor and other dec decedent land owners. A construction contract was signed with the notary Public on Dec. 07.08.2007 and in exchange for a share of land numbered 12425 evmiye. According to the agreement, the registered land parcel No. 7337 Antakya Hatay province on behalf of the owner of the immovable on dark drawer, municipal and local plans to be producing in accordance with the project from science and the sketch will be drawn and attached to the project, according to a basement, ground and three normal storey of a block, it was agreed to be made. Upon completion of construction by the contractor, ground floor, 1/3 of the circle No. 2 on the first floor, 3, 4 and 5 will belong to the owners of all the land on the regular units, the remaining 2/3 of the circle and second layer No. 2, Ground Floor, 6, 7 and 8 located on the third floor apartments, duplex apartments apartment 9 No. 10 No. 11, and will belong to the contractor.
12 of the Convention. according to the article, the project cost, construction supervision, municipal project expenses, floor easement fees, land registry fees, insurance premium fees, material costs, work and labor costs will belong to the contractor.
In addition, the contract regulates when the independent sections will be transferred to the contractor in stages during the construction phase of the construction.
A protocol dated 08.08.2008 has been dec between the contractor and the plaintiff. According to the protocol, it was decis dec that the plaintiff should share all the obligations assumed by the construction contract in half in exchange for the land share signed by the contractor with the land owners on 07.08.2007, and be equally common to the rights and responsibilities.
7 of the protocol. according to the article, the plaintiff shall be given to the act of the contractor in fulfilling the protocol that will become the owners of independent parts when at half the rate, the contractor will obtain all of the land in return for a share of the rights and interests from the construction contract, debt, and responsibilities as such, it was stated that would benefit equally.
Additional received by the court dated 07.05.2011 the expert’s report, the construction contract was signed between the contractor and the owners of the land plot in return for share of the cost of work completed construction made in accordance with 3.700,00-TL is the balance of the service fee 14.957 building inspection,00-TL determined that it was still not paid. In the expert report dated 11.05.2012 received from the financial advisor expert, it was determined that the defendant contractor did not pay the SSK premium of 19.616,68-TL within the scope of the construction.
In the article of the Hatay Tax Office dated 20.07.2012, it was stated that the defendant contractor has a tax debt of TL 6,463.29-due to the construction work activity as of 01.03.2008.
According to the protocol dated 08.08.2008 signed with the plaintiff, the defendant contractor has committed to transfer half of the independent sections that will fall to him in accordance with the construction contract in exchange for the land share dated 07.08.2007 signed with the dec dec land owners to the plaintiff on the basis of his personal right. However, both the contractor and the plaintiff who has inherited his personal right from him in writing must have fully fulfilled the performance of the contractor’s contract imposed on him in order to assert this right against the decedent land owners.
For the reasons discussed, the court primarily the owners of the plot of the contractor 07.08.2007-time plot in return for a share according to the terms of the construction contract of the case, determining whether they deserve it or not subject to independent sections, the part that deserves an independent contractor if the contractor signed with the plaintiff that the defendant 08.08.2008-time to claim the independent section of the protocol in accordance with the provisions of the requirements should be decided according to the results of the quantification are investigated these issues have not been observed, missing, review and evaluation, the provision has been established.
As such, it is contrary to the procedure and the law to resist the previous decision, while the mutual claims and defenses of the parties, the minutes and evidence in the file, the decision to overturn the Special Chamber adopted by the General Assembly of Law according to the reasons explained in the decision to overturn must be complied with.
The decision to resist for the reasons described must be overturned.
CONCLUSION: Provisional Article 3 of the Civil Procedure Code No. 6100 for the reasons described above is indicated in the decision to deconstruct the Private Apartment of the defendant contractor and the defendant land owners’ deputy’s decision to resist by accepting appeals of the defendant land owners. 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, if requested, the appeal advance fee will be returned to the depositor. in accordance with the article, the decision was made unanimously on 23.05.2018, with the path to correction of the decision open within fifteen days from the notification of the decision.
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