14. Legal Department 2017/65 E. , 2017/8677 K.
“Text Of Jurisprudence”
It was decided that the above–mentioned written decision issued by the district court on the cancellation of the title deed and registration case based on the right of preemption between the parties; 21.09.2016 days and 2015/17249 Basis – 2016/7143 Decision No. 1 was corrected and approved by dec. Within the period of time, the plaintiff … was asked to correct the decision by his deputy, but all the documents in the file were examined and considered necessary:
decision
The plaintiff, dated 09.12.2014 stakeholder joint petition 125, 132, No. 778 12322 and the defendant’s bond is purchased with an official journal No. date 17.10.2014 plots that the right of preemption based on 1/8 to share in the name of the registration and cancellation wanted to.
The defendant … his/her attorney accepted the case on condition that they deposit the pre-trial fee with his/her petition dated 24.03.2015 prior to the pre-trial hearing dated 21.05.2015.
The defendant seller … has not responded to the lawsuit.
By the court, the defendant … dismisses the case from passive hostility in respect of the other defendant
Upon the appeal of the defendant … his deputy, the judgment was issued by our Department in accordance with Article 22 of the Law on Fees. according to article 1,491, 207 TL, which must be received before the first hearing, is 1/3 of the fee, 324,50 TL taken in advance, and the balance is 173,19 TL taken from the plaintiff and added to the register of income in the treasury”by adding the phrase “HUMK 438/7. in accordance with the article, it has been decided to approve it in this form, which has been amended and corrected.
The deputy plaintiff has requested a correction of the decision.
1- Although the deputy plaintiff duly appealed the court’s decision, it was found that no positive or negative decision was made in the approval decision of our Department in terms of the appeal of the deputy plaintiff. In the review conducted;
22 of the Law on Fees No. 492. according to the article; If the waiver of the case or acceptance of the case or the magistrate occurs at the first hearing of the proceedings, one third of the decision and decision fee and two thirds if it happens later will be taken.
HMK’s 326th. article 2. i do not apply for trial fees. Because, except for the rejection of the case, the fee is always charged to the defendant.
In addition, 6 of the Minimum Wage Tariff for Lawyers. since the acceptance in accordance with the article takes place before the fulfillment of the interim decision on the collection of evidence, half of the fee set by the tariff provisions should also be dec.
The defendant has purchased a share in the real estate and is responsible for the costs of the trial, even if the defendant accepts the case before the first hearing, since the plaintiff can only use the pre-trial right through the lawsuit.
In the concrete case; the court decided to grant the right of pre-trial based on the price shown in the title deed and taking into account the statement of acceptance of the defendant’s attorney before the preliminary examination hearing. In this case, it is decided that the trial costs will be taken from the defendant and given to the plaintiff in accordance with the above-mentioned articles and that the attorney fee will be decided for the benefit of the plaintiff on the basis of the value of the money invested in the case when the case is filed and taking into account the statement of acceptance of the defendant’s attorney before the preliminary examination hearing and 22 of the Fees Law No. 492. while fees should be collected from the defendant in accordance with the article; in addition, the decision should be overturned due to the fact that the real estate numbered 778 parcels was not specified as a figure in the provision paragraph, while the decision to approve the sehven by our Apartment with this modified and corrected form in reference to the defendant’s attorney’s appeal was not considered correct, and since the violation of the law in the specified aspects was understood in the review this time, the plaintiff’s attorney’s decision was corrected acceptance of the request, it was necessary to decide whether the previous provision should be overturned on these grounds described.
CONCLUSION: For the reasons described above, it was decided that the decision of the plaintiff’s attorney on the adoption of the request for correction of the decision and the removal of the decision No. 2015/17249 of 21.09.2016, Decision No. 2016/7143 on the correction of our Apartment, the provision of appeal for the above reasons, the return of the fee deposited in advance to the depositor on request, was decided by a majority vote on 21.11.2017.
(Opposition)
-WRITE A VOTE AGAINST-
The case concerns the cancellation of the title deed and the request for registration due to the right of pre-registration.
In his reply petition, the defendant requested that he accept the case, that the amount of şufa be deposited with the bank by the plaintiff, and that he not be held responsible for the trial costs and the attorney’s fee.
The court decided to accept the case based on the amount shown in the contract and the amount of title fees and expenses incurred by the buyer, to take the trial expenses incurred by the plaintiff from the defendant, to take the proxy fee from the defendant because the plaintiff has represented himself with a proxy.
The decision was appealed by the deputy plaintiff in terms of the costs of the trial.
The plaintiff exercised his right to pre-trial by filing a lawsuit. He has stored the sale price and expenses shown in the title deed within the period given to him by the court, and there is no claim for muvazaa on the sale price.
The defendant has declared that he has accepted the case within the time limit for responding to the case.
734 of the Turkish Civil Code. in accordance with the article, the right of pre-emption is used by filing a lawsuit against the buyer. The exercise of the right of pre-emption on the dates when Article 659 of the Law No. 743 is in force has not been subject to any form. The right of pre-emption could be used with a lawsuit petition or it could also be used with a letter or a notary’s notice provided that it was delivered to the other party in written form. 734 of the Turkish Civil Code No. 4721, which entered into force on 01.01.2002. according to the article, the principle has been introduced that the right of legal preemption can only be exercised by filing a lawsuit. It is not possible to use the right of pre-emption with the explanation of the will outside the case in the face of the new legal regulation.
There is no provision of the law prohibiting the purchase of shares from shared real estate. It is not possible for the shareholder to know that the right of pre-emption will be asserted against him. There is also no legal provision that obliges other stakeholders to obtain their statements that they will not exercise their right to pre-emption before purchasing shares.
The provisions of the Code of Civil Procedure on trial expenses are applied in the same way in pre-trial cases. 312/2 of the Code of Civil Procedure No. 6100. according to the article, the defendant cannot be sentenced to pay the costs of the trial if he did not cause the opening of the case by his own state and behavior and accepted the result of the plaintiff’s request at the first hearing of the trial.
The defendant cannot be held liable for the costs of the trial and, in the meantime, the attorney’s fee in accordance with Article 312/2 of the HMK due to the fact that he has informed that he has accepted the case in the petition for a response to the case. dec.
For these reasons, I cannot agree with the decision of the court of first instance to overturn the decision by accepting the majority’s request to correct the decision, as I think the approval decision dated 21.09.2016 is correct.
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