14. Department of Law 2016/9700 E. , 2017/5230 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
It was decided that the above–mentioned written decision issued by the district court on the cancellation of the title deed and the registration case arising from the right of pre-emption between the parties would be overturned by Dec. 01.03.2016 and Dec. 2015/15936 Basis – 2016/2539 of our apartment. It was requested that the decision be corrected by the defendant’s deputy within the time limit, but all the documents in the file were examined and considered necessary:
Decision
Plaintiff from the defendant No. 2679 parcel immovable are involved with the stakeholders based on the previous case with the subject of the sales contract between the defendant to the lawsuit by default share has been registered on behalf of a lawsuit, asserting that that is acquired through sales of other shares was not made due to preemption notification to the registration in the name of the share wanted.
The defendant defended the rejection of the case by stating that the period of reduction of rights had passed, there was a de facto installment, and he acquired some shares by barter.
The court has decided to dismiss the case on the grounds that the period of lowering the rights has passed.
The decision was appealed by the deputy plaintiff.
The case concerns the cancellation of the title deed and the request for registration due to the right of pre-registration.
The pre-emption right is a right that gives other stakeholders the authority to purchase this share sold primarily if a stakeholder partially or completely sells his/her share of the immovable property to a third party in real estate subject to the provisions of shared ownership. This right arises as soon as the joint ownership relationship is established and becomes available upon the sale of shares.
Registration is mandatory for the birth of rights in kind. The same right will not be savable, nor will it be publicly acquired, unless it is registered with an innovation-generating nature.
According to Article 705/1 of the TMK, “Acquisition of immovable property is by registration.”
In accordance with Article 705/2 of the TMK; inheritance, court decision, forced execution, occupation, expropriation, as well as other cases provided for in the law, property is acquired before registration. However, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry.”
In Article 1022/2 of the TMK, it is explained that the effect of registration will begin on the date of registration in the journal book. In this way, if the right of ownership is registered, it becomes publicly available and can be asserted against everyone.
“…It should be noted right away that in Turkish Law, registration is required in principle for the acquisition of immovable property. As a matter of fact, 705 of the Turkish Civil Code No. 4721. according to its article, the acquisition of immovable property occurs by registration.
On the other hand, the principle of registration in Turkish Law is not absolute. In the presence of certain legal reasons, the ownership of the immovable property is transferred and acquired before the registration is made. However, in order to be able to speak about the exception to the registration principle, this exception must necessarily be provided for by law. 151 of the Turkish Commercial Code No. 6762, partly in articles 54, 105 and 599 of the same Law as Article 705/2 of the TMK, what are the cases of acquisition of immovable property that are not based on registration. it is shown in the article. TMK’s 705/2. pursuant; “Inheritance, court decision, forced execution, occupation, expropriation, as well as other cases provided for in the law, property is acquired before registration. However, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry.”
According to Article 705/1 of the Turkish Civil Code, property is acquired before registration in cases of inheritance, court decision, forced execution, occupation, expropriation. In this case, the immovable property passes to the new owner along with all its loads that have been registered or annotated. An incomprehensible right cannot be asserted from the register against a person who has made an unregistered acquisition, provided that he has good faith, that is, TMK m.the provision of 1023 also applies to this person. A person who has acquired property without registration enjoys all the rights and powers that a property owner had before registration, but these rights and powers cannot be asserted against well-off third parties unless the right to property is registered in the title deed, because they have not yet been clarified. For this reason, it is of great benefit for this person to register the property right that he has acquired without registration immediately without wasting time. The subsequent registration has only declarative nature (Jale G. Akipek, Turkish Property Law, Rights in Kind, Second Book, Property, Second Edition, Sevinç Printing House, Ankara, 1973, p.121-122).
However, savings transactions cannot be made unless registration is made for gains that are not based on registration, because the person who acquires real estate without registration does not appear as the owner in the land registry.
As a matter of fact, this issue was stated in Article 705/2 of the Turkish Civil Code as “however, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry”.
In a concrete dispute, Gaziosmanpasa 1, whose ownership of the disputed share in real estate No. 2679 parcel was finalized on 02.11.2011. It was won by the decision of the Court of First Instance No. 2009/556 on the Merits and Decision No. 2010/563. The execution of the aforementioned provision was carried out on 12.12.2011 and the share was registered in the name of the defendant.
In the event subject to litigation, the defendant acquired a share in the real estate subject to litigation with a provision that the plaintiff is not a party to. If the defendant has acquired the right of ownership on the date of finalization of the provision, he has also acquired the right to save on this share by registration. 1020 of the TMK, it is expected that the party that wins the right to own property before registration knows that the decision that the plaintiff is not a party to has been finalized in the event that he can only obtain the right to save by registration, and that the right to pre-empt will be used accordingly. it is also contrary to the principle of “openness of the land registry”, which is regulated in its article. However, decisions on registration may not include a conviction provision in the case, and may always be executed by the one who has the right to register due to the fact that it has a novelty-giving nature. In this case, the execution of the provision after the expiration of the periods specified for pre-approval in Article 733 / last of the TMK may lead to abuse of the right.
In addition, TMK has 732. according to the article, the right of pre-emption is a right that can be exercised by selling a share, and it is not enough to establish a sales contract in order to exercise this right. The sale becomes valid and public upon registration of the property in the land registry. Since the plaintiff filed this case on 11.12.2013 after the date of 12.12.2011, when the share subject to litigation was registered on behalf of the defendant, the two-year right reduction period described in Article 733 /last of the TMK has not elapsed.
While a decision should be made by the court on the merits of the work taking into account the stated considerations, the rejection of the case on written grounds was not considered correct, and therefore the decision had to be overturned.
17, which has nothing to do with the file, since it is understood that a material error was made when writing the corruption notice. in the “Concrete case; In the case of the plaintiff Işbank, the debtors are out of the case … Livestock Foodstuffs Agricultural Products Agricultural Tools San and Tic Ltd. Şti. and Umm Sarihan was initiated about and….. In the enforcement proceedings conducted in the file No. 2007/3965 E of the Enforcement Directorate; Akhisar 2. It is requested that the 8000/12200 shares of debtors registered in 725 parcels be sold by tender through the 2007/346 instruction file of the Executive Directorate; in the forced tender held on 14.05.2009, the creditor Işbankası A. with a price of TL 13.400 of the said immovable share.Sh.it is understood that the tender was tendered and the tender was finalized on 04.09.2009.” the decision had to be overturned for the above reason by removing the section.
CONCLUSION: For the reasons described above, it was decided by a majority vote on 01.03.2016, 2015/15936, 2016/2539 Decision No. 19.06.2017 to ABOLISH the decree on cancellation of our apartment for the reasons described above, to DISRUPT the provision for the reasons described above, to return the fee deposited in advance to the depositor on request.
(Opposition)
-WRITE A VOTE AGAINST-
In terms of the pre-emptive right used for the share acquired as a result of the forced registration case, the dispute is being collected at the point where the start date of the right reduction period provided for in Article 733 / last of the TMK is the date of finalization of the registration application or the date of registration of the said application to the title deed.
It should be immediately noted that the right to pre-emption (to the suf) in the Turkish Civil Code No. 743, repealed by Law No. 4721, 658 and 659. it is regulated by articles 658. in the last paragraph of the article, “a month from the day the chief is forced to sell, and probably ten years from the date of the comment to the register, the right to the shuf becomes reserved”, 1-month and 10-year rights reduction periods are provided for, 26.12.1951 day and 1/6 “658 of the Civil Code. like the one-month period in the last paragraph of the article, the ten-year period must be applied to the legal preamble. The ten-year period begins on the day of the sale of the pre-sale (pre-sale). The beginning of this period is the date of sale of the share” With the Decision to Merge the Case Law in the form of “The beginning of the maximum right period is the date of sale of the share will also be applied to the exercise of the legal right of preemption” and it has been accepted that the beginning of the maximum right reduction period is the date of sale of the share and in the Turkish Civil Code No. 4721, which entered into force on 01.01.2002, the provisions on the right of legal preemption 732, 733 and 734. in accordance with articles 733. in the last paragraph of the article, with the provision “the right of pre-sale falls three months after the date of notification of the sale to the rightholder and in any case two years after the sale”, the right reduction periods and their beginnings have been determined.
On the other hand; Article 705/1 of the Turkish Civil Code No. 4721 emphasizes that real estate ownership will be acquired by registration of the said article 2. in the paragraph “inheritance, court decision, forced execution, occupation, expropriation, as well as other cases provided for in the law, property is acquired before registration. However, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry,”the regulation has been introduced.
The aforementioned regulations, in accordance with Supreme Court case law precedent is also the winner of the stability of; “the right of preemption of shares can be sold to third parties if it is to be used, the maximum stipulated in the Turkish Civil Code No. 743 Law No. 4721 repealed (repealed Law No. 743 10 years, which is still in force in Law No. 4721 2 years) of the statutory limitation period will begin from the date of sale; the case was opened on the basis of the sales contract as a result of the acquisition of shares, registration of sales, and the sales contract of the court order replaced; since the right of ownership was acquired with the finalization of the registration decree, the right to suf was born on this date, and the beginning of the maximum right-lowering period is the date of finalization of the registration decree”. (The General Assembly of the Supreme Court of Law; “It is not a promise of sale that can be put up for sale, but the date of finalization of the decision on registration.(06.05.1979-672/477)”, “If the period is specified in the law as a month, the regulation on the beginning and end of it in the account of 161/2 of the procedure. is the provision. The periods in the Shuf should be calculated accordingly. (05.12.1990-544/612)”; Supreme Court 6. The Law Department; “In the answer of the land registry guard, it is written that the act of sale was made on 26.05.1959 and the official deed of sale was issued at the residence of one of the interested parties, and the registration in the register was made on 27.07.1959. The right to Suf is born on the date of the official sale act in the presence of the land registry guard.(20.02.1962-57/1476)”, “The registration of real estate shares decided by the court decision shall take place without the need for registration in the title deed to the shuf. Since it is understood that a lawsuit has not been filed within a month from the date of finalization of the registration decision, its rejection is required.(10.07.1962- 3628/4814)”, “After the decision of the Court of Title is finalized, it is necessary to file a lawsuit against the suf within 1 month.(15.05.1965-1610/2202)”, “Article 633 of the Civil Code. according to the article, the right to the same right is born at the request of registration of the right to jihad shuf, which it has been transferred by court order. In this respect, the registration of the title deed is not the beginning of the right-lowering period. (30.05.1972-1484/2110)”, “Acquisition of shares by registration lawsuit filed as a result of the sales promise agreement is also a kind of sale. The court order replaces the contract of sale. The duration of the case is taken into account according to the date of finalization of the decision on registration.(15.01.1986-11822/32)”, “The defendant acquired the share of shuf’ali as a result of the finalized forced registration case. Since the right of ownership passed to the defendant on the date of finalization of the forced registration decision, the right to suf was born from this date.(17.12.1986-12701/14545)”, “Since the defendant acquired the share by court order, he became the owner before the registration of the deed in accordance with the provision. From this date, one month after the day of learning the language, and in any case, at least ten years after the intika, it is necessary to exercise the right to shuf.(21.04.1993-4653/4852)”, “Şuf’ali pay was acquired as a result of an algebraic registration case. For the acquisition of the right of ownership, there is no obligation to register it in the title deed. The lawsuit is valid since it was filed within a month from the date of finalization of the registration application.(07.07.1994-7426/7710)”, “Since it is understood that the lawsuit was filed after the finalization of the case of forced registration and after the expiration of a one-month period of rights reduction, its rejection is required.(06.06.1995-5559/5754)”, “If the joint share was acquired as a result of a lawsuit filed on the basis of a sales promise agreement, the date of receipt of the final decision on this is the date when the one-month period of entitlement reduction begins.(15.03.1999-2282/2226)” There are precedents for concrete events.)(Source:Muslim Tunaboylu/Pre-Islamic (Shuf’a) Cases/ Extended 5. Edition/ 225 to 284. pages)
Again, Supreme Court 6. In the decree of the Law Department dated 13.03.2007 and numbered 395-2647, it is clearly stated that “…as a result of the title cancellation and registration case filed by the defendant The lawsuit was filed on 7.4.2006. If the share being sued has been acquired by a court decision, the right reduction period begins to operate for the exercise of the right of pre-emption with the finalization of the court decision. Because 705/2 of the Civil Code.in accordance with the provision of the article, the property is considered acquired without the need for registration upon the finalization of the court decision. As explained above, as of the date of finalization of the provision on the date of filing the case, two years of the right reduction period has been passed, so the court should decide on the dismissal of the case in terms of time …”It was emphasized that the beginning of the right reduction period in respect of the share acquired by the provision registration is the date on which the registration decision was finalized.
On the other hand, in the decision No. 855 of the General Assembly of the Supreme Court of Law dated 20.03.2013 and No. 2012/6, Decision No. 2013/376 on sales made by discretionary tender, it is also stated that “… the dispute that came before the General Assembly of Law through resistance; 45 of Law No. 2286.according to the article, whether the preemption right can be used against the share sold can be collected at the points whether the claimant’s request will be accepted according to the conclusion to be reached here. Before proceeding to the essence of the work, the issue of whether the pre-trial case can be opened in the face of the fact that the share subject to the pre-trial right sold to the defendant by discretionary auction has not yet been transferred to the title deed on behalf of the defendant has been discussed as a preliminary question. 732 of the Turkish Civil Code (TCC) No. 4721. in its 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-emption” in accordance with Article 734 of the same Law.in the article, “The right of pre-emption is used by filing a lawsuit against the buyer. The owner of the pre-sale right is obliged to deposit the sale price and title expenses incurred by the buyer in cash to the place determined by the judge within the period determined by the judge before the registration of the share is decided on his behalf,”it was said. As it can be seen, the relevant articles regulating the “right to pre-sale” always mention ‘sale’, emphasizing that the right to pre-sale will arise with the sale of a share. In other words, in order to exercise the pre-emption right, it is sufficient to establish the sales contract as valid and there is no need to wait for the registration of the share in the title deed on behalf of the defendant. As a matter of fact, YHGK has 06.02.1957 days and 1957/6-1-6 the same point has been accepted in the numbered decision. In addition, the share subject to the lawsuit could not be registered on behalf of the defendant due to the injunction imposed due to the lawsuit being heard. It has been accepted by the majority that there is no pre-approval for the reasons described …”It has been accepted that the right to pre-approval can be used from the moment a valid sales contract is established.
Court of Cassation on discretionary tender 6. The case law of the Law Department states, “Şufali share has been tendered to the defendant in accordance with the provisions of Law No. 2490. In this case, the beginning of the right reduction period is the date on which the plaintiff learns that the tender has been finalized.(03.05.1968-4635/2285)”, “The immovable property to which the share of the Suf is related was registered on 13.10.1993 under Article 45 of Law No. 2886. according to the article, it is understood that it was tendered by open tender method and the share was tendered to the defendant at the end of the tender. 225 of BK. according to the article, the body was found by the seller’s tender in the contract of sale. In order to exercise the right to Shuf, it is enough to find out about the sale.(11.04.1994-3927/420)”, “The sale act shall be completed by discretionary tender.(03.04.1996-3210/3778)In the form of“and later “Sales made by tender, the period of reduction of rights starts from the date of registration of the title deed, not the date of finalization of the tender.(01.12.2008-10291/3429)”. (Source:Muslim Tunaboylu/Onalim (Shuf’a) Cases/ Extended 5. Print/ 162 to 280. pages)
It should be immediately noted here that ownership cannot be acquired by discretionary tender, the right in kind will be born only by registration, and there is no doubt that the Supreme Court 6. The case law of the Law Department No. 01.12.2008-10291/3429, mentioned above, states that ownership was acquired before registration (TMK 705/2. it does not set a precedent in terms of (article).
In that case; when the above-mentioned legal regulations and the precedent Supreme Court case law are evaluated together; 732, 733 and 734 of the TMK regarding the right to legal preemption. in order to use the right of pre-sale, it is necessary and sufficient to perform a valid sales transaction. 705/1 of the Same Law. acquisition of immovable property in accordance with the article shall be by registration. Again, in parallel with this provision, Article 1022 of the same Law. in the article, it is explained that the rights in kind will be born with registration in the register. However, the exception to these provisions are cases of unregistered acquisition; these are the cases of TMK 705/2. in the article, it is emphasized that the property will be acquired before registration by counting it, and in the continuing provision, it is also clearly stated that registration is mandatory for the owner to make savings transactions. Undoubtedly, this obligation is provided not for the owner to acquire the right of ownership, but for him to be able to make savings transactions. In other words, it is clear that the provision referred to relates to the property and that there can be no mention of a savings transaction related to the right of ownership in terms of persons other than the owner of the right of ownership. On the other hand; 28 of the Law on Enforcement and Bankruptcy. article “If a decision is made in favor of the plaintiff in real estate cases, the court shall notify the land registry office of its application together with the interpretation of the decision without prejudice to the plaintiff’s request. The relevant department shall comment on the registration of the real estate subject to this jihad. This commentary is subject to the provision of the second paragraph of Article 1010 of the Turkish Civil Code. If the decision made on the immovable property case is finalized against the plaintiff in the future, the court will immediately notify the land registry office of the application of this provision, which includes the provision “; the existence of a registration notice can be publicly asserted in accordance with the provision in Article 1010 / last of the TMK “restrictions on savings authority can be brought forward against the owners of the rights acquired later on real estate by issuing a comment” by issuing a comment to the land registry before the date of finalization, 1022, 1023 and 1024 of the same law. it is clear that the registration organized in the articles will result in parallel with the results.
Then; 4721) of the Turkish Civil Code 733/the last item, of the right of preemption of the sale within two years that would fall to be clearly stipulated pass, in other words, in the text of the law as the beginning of a statutory limitation period of two years to be taken as the basis for the sale of failure to comply with the registration requirement and, in the face of the deed and the registration of the sale contract issued as a result of the cancellation of the registration of the shares in relation to the case of a warrant from the court a warrant as of the date of finalization of the sale and registration of contractual replaced in favour of registration of the property rights acquired before the registration of the decision (TMC’s 705/2. article) When considering, it is concluded that the right to pre-emption will fall within two years from the date of finalization of the pre-registration, that is, the acquisition of ownership, in the event that such a provision becomes a stakeholder with the registration of the ilam.
In a concrete case, the basis of the 1/15 share, which was officially registered on behalf of the defendant on 12.12.2011 from the shares subject to the preliminary investigation case, is Gaziosmanpasa 1 regarding the registration of shares issued as a result of the lawsuit filed on the basis of the real estate sales promise agreement. The Court of First Instance’s decision dated 21.10.2010 and based on 2009/556, decision No. 2010/563, which was finalized on 02.11.2011, and the case was filed on 11.12.2013, more than two years elapsed between the date of finalization of the decision and the date of the case, and the right to preposition in accordance with Article 733 / last of the Turkish Civil Code, the period of decriminalization due to the fact that; in terms of the share in the other case, the acquisition of stakeholders (conveyed to the stakeholders in different words) will be in question, since the position of other stakeholders in identifying and preemption in the absence of the plaintiff’s right of adoption by the court, “the case of denial” misses a decision being made as there is not, in anticipation of a decision according to the law and case law, the defendant’s decision with the acceptance of a request for the correction of the Local Court affirmed the decision of the majority is the decision of MR with the view that I can’t participate in.
You can read our other articles and petition examples by clicking here