General Assembly of the Law 2017/2196 E. , 2017/1112 K.
“text of jurisprudence”
COURT : Magistrate’s Court
At the end of the trial held for the case of “decoupling of partnership” between the parties, Malatya 1. 18.06.2014 day and 2010/180 E, which were issued by the Magistrate’s Court on the acceptance of the case and the elimination of the partnership by selling it. 2014/967 K. upon request of the deputy plaintiff and part of the deputy defendants to examine the decision on appeal, the Court of Cassation 14. The date of 04.03.2015 and the date of 2014/12865 E of the Legal Department., 2015/2378 K. by his numbered decision;
(…The case concerns the request for the dissolution of the partnership.
The defendants … and
The defendants … the deputy and the Deputy Treasury defended the dismissal of the case.
The defendants …,
Upon acceptance of the case by the court, it was decided to resolve the partnership in real estate No. 408 ada 323 parcel, the subject of the case, by selling it by auction between the public and the sales price should be distributed according to the allocation of the civil engineer expert in accordance with the option specified in the report (C) dated 05 dec06.2014.
The judgment, the acting plaintiffs, the defendants …,
1-According to the trial, the evidence collected and the entire contents of the file, the appeals of the defendants’ deputies who appealed the verdict were not considered on the spot, and their rejection was required.
2-When it comes to the appeal of the plaintiffs’ attorney;
In the event that the stakeholder is eliminated through the sale of the building, tree, etc. on the immovable property subject to litigation.s. if there are integrative parts such as (need), they must be sold together with the supply. However, if there is a comment in the title deed that the memorandum belongs to some stakeholders, or if all the stakeholders are in alliance in this regard and the memorandum causes an increase in the value of the supply, the values of the supply and the memorandum are determined separately as of the date of the lawsuit to determine this increase. By summing these determined values, the entire value of the immovable property is found. The percentage (% …) ratio is determined by establishing how much of this value is found, how much of the supply hits the need. The division of the price to be obtained at the end of the sale is also made on the basis of these ratios. The portion that hits the muhdesat is distributed to the muhdesat owner stakeholder, and the remaining amount is distributed to the stakeholders (partners) at the rate of their shares.
In the concrete case, it is understood that the real estate No. 408 ada 323 parsel, the subject of the lawsuit, was registered to the title deed on 02.05.2008 as a result of the zoning application and the case was opened on 01.02.2010.
In the expert report dated 05.06.2014, which is based on the provision, it is seen that the sales price is calculated in such a way that it should be distributed between the parties by showing three separate options. dec.
In the expert report, it was seen that the sale price was calculated according to the values of cadastral parcels based on the pre-zoning formation of real estate in option (A), according to the current actual situation in option (B), and in option (C), according to the calculation of distributing the decadal parcel values between previous owners of decadal plots before zoning at the rate of shares of the value increase caused by zoning among all stakeholders by establishing a ratio. Although the judgment was established by the court based on option (C) without calculation, in other words, the sale price of the real estate should be distributed according to option (A) in the expert report, taking into account the current state of development of the real estate as of the date of litigation, while it was not considered correct to make a decision in writing, so the judgment had to be overturned…)
at the end of the retrial, the court resisted the previous decision by being overturned on grounds and the file was returned 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 papers in the file were read, the requirement was discussed:
The case is related to the request to resolve the partnership of real estate numbered 408 and 323 parcels.
The defendants …,
The defendant Municipality and Treasury deputies have defended the rejection of the case.
With the adoption of the case by a local court No. 323 408 auction premises of the partnership among the public, the case moved through the procedure island parcel to be offset by sales price and sales of immovable property of the stream, the pre-suyulandirilm values due to the amount of their shares from the increase in value of real estate by summing the amounts found by comparing the total value of the real estate to be distributed in accordance with the percentage it was decided that.
The judgment was appealed by the deputy plaintiffs and some of the defendants, and was overturned by the Special Department on the grounds written in the title section above.
If there is a difference in value between the plots of land that have been declared due to the zoning application by the court, in this case, the value of each parcel has been determined separately and the distribution of the money obtained by setting the rate should be made accordingly, if the distribution is made at the rate of my stakeholders’ shares, dec dec decision to resist on the grounds that there will be an illegal result against the stakeholders with valuable real estate owners.
The decision to resist was appealed by the deputy plaintiffs.
The dispute that comes before the General Assembly of Law through resistance is being raised to the point of whether the sale price of the real estate subject to litigation will be distributed to the owners in the proportion of their shares or according to the position and status of the cadastral parcels that make up the zoning parcel, depending on whether the value will be assessed separately and the rate will be established.
First of all, it is useful to introduce legal regulations and legal concepts and institutions related to the subject.
698 of the Turkish Civil Code No. 4721 on how to share real estate subject to shared ownership. it is regulated in the article. Accordingly, “Each of the stakeholders may request that the property be shared unless there is an obligation to continue the shared ownership in accordance with a legal transaction or because the shared property is permanently specific to a purpose. The right to request to share may be limited to a maximum period of ten years by a legal process. Contracts for the continuation of shared ownership in real estate depend on the official form and can be annotated in the land registry. You cannot request sharing at an inopportune time.”
One or more of the stakeholders file a claim for the elimination of the stakeholder against the other stakeholders. Stakeholder elimination cases consist of two phases as an investigation of how to share and sharing. Sharing can be in kind or by selling. It is done by giving each stakeholder a certain part of the property that is being sued in the event of a share in kind.
Zoning applications are carried out in order to make planning, saving and implementation of public services in the town in accordance with the principles of the “urban science branch” of the city. When carrying out zoning, cadastral plots, the ownership of which belongs to other persons, are completely or partially combined or a large parcel is decoupled into pieces. If these new parcels of real estate formed by zoning are allocated to more than one person, shared ownership is formed due to the law When it is requested to eliminate the stakeholder in the shared ownership formed by zoning, it should be decided to eliminate the partnership through sale, since the same installment is not possible.
In real estate subject to shared ownership, the rule is that the sale price is distributed to stakeholders at the rate of their shares. However, the absolute application of this rule will lead to consequences that are not in accordance with decency and justice if there is a difference in value between the zoning and the real estate being built. Because if the sale price is distributed according to the shares, the less valuable immovable owner will get an unfair interest against the more valuable immovable owner. In this case, requesting the distribution of the sale price of the zoning parcel according to the shares will constitute an abuse of the right, as well as the transfer of the assets of the more valuable parcel owners to the less valuable parcel owners. In order to prevent an unfair situation, a share should be made based on the fact that each cadastral parcel benefits from the sale price in relation to the value added to the zoning parcel. Because the protection of property is fundamental in zoning law.
In that case, taking into account that the cadastral plots subjected to zoning by the court are located on the front, back and side fronts before zoning, the value of each of them should be determined separately by their location and the sale price should be apportioned according to this ratio by finding the ratio of each to the sale price of the entire zoning parcel. As a matter of fact, the General Meeting of the Law was held on 12.10.1968 days and 1966/6-651 E., 1968/654 K.; 13.10.1971 day and 1967/6 E., 1971/587 K. the same conclusion was reached in their numbered decisions.
As for the concrete case, the immovable property that is requested to be removed from the stakeholder by being sold is immovable No. 408 island 323 parcel and the cadastral 408 island 76, 142, 143, 219, 262 and arch parcels consisting of 3194 numbered 18 of the Zoning Law. according to the article, it was created by conducting a zoning application and it was decided to dismiss the case filed for cancellation of the zoning application by the Administrative court, and this decision was approved and finalized by the Council of State.
From the distribution chart based on registration, it is understood that the shares were determined according to the area during this formation, and the monetary value of cadastral parcels was not taken into account. However, the experts expressed the opinion that cadastral parcel No. 142 belonging to the defendants is decked and more valuable, and other parcels subject to zoning, including parcel No. 148 belonging to the plaintiffs, are less valuable immovable properties that do not have a street front and are empty land. Considering the way the shares in the real estate subject to litigation are determined and the difference in value before zoning, apportioning the sale price of the real estate in the proportion of its shares will constitute a violation of the principle that each cadastral parcel will benefit from the ratio of the value added to the zoning parcel. Therefore, since it is accepted that the sale price that will hit the land plot should be divided not in the proportion of shares between the land owners, but in the proportion of the value of each cadastral parcel before the zoning application, and the court decisively decisively distributed the sale price on this basis, it is necessary to resist.
During the negotiations held at the General Assembly of the Law, it was suggested that a new parcel subject to shared ownership had been formed with the application of zoning and that the amount of the share, not the place that hit each stakeholder’s share, was determined in the real estate subject to shared ownership, so the sale price should be distributed at the rate of their share and the decision to disrupt was made, although this opinion was not adopted by the majority of the Board.
However, other appeals against the amount of the provision on the elimination of the partnership of real estate by the Private Apartment through the sale and the distribution of the sale price to the stakeholders have not been examined, and the file must be sent to the Private Apartment for this review.
S O N U O : 14 of the file for the examination of other appeals for the amount of which it is appropriate to resist for the reasons described above. It was decided by a majority vote at the second meeting held on 14.06.2017 that he should be SENT to the LEGAL DEPARTMENT, with the decision correction path closed.
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