14. Department of Law 2016/18975 E. , 2017/1792 K.
“text of jurisprudence”
COURT OF First Instance: Court of First Instance
The case file on the decision to resist issued by the local court upon the violation of the decision issued by the court as a result of the decommissioning and registration case between the parties by our Department is Temporary 4, which was added to the Civil Procedure Code No. 6100 by Law No. 6763, which entered into force on 02/12/2016. having been sent to our apartment in accordance with the second paragraph of the article, the file was examined and considered necessary.
The decision of the local court dated 27.02.2013 and dated 2012 /431E with the Decision of our department dated 05/11/2013 numbered 2013/82111 – 2013/13805 dated 07/02/2013. it was decided to overturn the provision No. 2013/77 and the court resisted the first provision with its decision No. 2014/339-407 dated 25.12.2014.
The decision to resist was appealed by the deputy plaintiff.
The plaintiff requested registration of the cancellation of the title deed based on the right of pre-emption in the petition of claim.
The answer of the defendant in the case with the respondent company from the cooperative arrangement between the parties-shaped floor that was signed for the construction contract, the right of lien could not be used, the deed from that was the purpose of the fulfillment of obligations in the contract any transfer of stakeholders, we do not really intend to sell their share, but the estate with the intention of becoming a home owner to transfer defended the dismissal of the case by indicating what they did.
The Court stated that “… the transfer made is not for sale, but is a transfer made in accordance with the construction contract, therefore 732 of the Turkish Civil Code and 2, which bears the title of acting honestly.according to the article, the right of preamble cannot be used …..” it has been decided to dismiss the case on the grounds of.
The first decision of the court was appealed by the acting plaintiff.
In the decision No. 2013/13805 on the basis of 2013/8211 dated 05/11/2013 of our department, “… the plaintiff in the immovable property No. 3244 / 20 parcels is the subject of the lawsuit
on 04/02/2011, 27/280 shares were owned for the reason of the sale, and the defendant became a non-claimant … Evleri Konut Yapı Kooperati’s share was purchased on 13/02/2012 and became a stakeholder in the immovable property. Between the defendant and the non-litigious cooperative in which he acquired a share in the immovable property subject to dispute and other dec-litig dec land owners … 8. A construction contract has been dec for the land share dated 06/01/2012 and numbered 1130 evmiye at the notary’s office. In this agreement, 7208 island 6 parcel dec. will be built in real estate out of litigation; 42 apartments will be provided to the land owners in Article 7 / a, 21. in its article, it is decis dec that the subject of the contract (7208 island 6 parcel number), which is owned by the land owners, will transfer all the land plots and all the land deeds located on 3244 island to the contractor together with their rights and debts. It is seen that the subject of the contract is numbered 7208 dec 6 parcels, the land owners and the independent sections that will be left to the contractor are located on this real estate. Therefore, there is no provision for the transfer of parcel 20, the subject of the lawsuit, in exchange for the independent sections to be given to the land owners in the building to be built on parcel 6. There is no provision for the transfer of the parcel dec. 20. In other words, since the transfer of parcel 20 has not been decided in exchange for the actions in real estate No. 6 parcel, it is understood that the sale between the defendant and the non-claimant dec a real sale. In this case, the court, since the precondition conditions have been established, the plaintiff must be given time to store the sum of the real estate price and title fees and expenses, while a decision must be made according to the result ….”…….the decision has been overturned on grounds.
In its Decision to resist dated 25.12.2014 and numbered 339-407, the Court stated that the transfer of shares is a transfer made in accordance with the construction contract, therefore, the Turkish Civil Code has the title 732 and act honestly 2.according to the article, he resisted in his first decision on the grounds that it was understood that the right to pre-trial could not be used.
Although the decision to resist was sent to the General Assembly of the Law for consideration, by the Law of 6763 adopted on 24/11/2016, the Provisional 4 added to the Code of Civil Procedure No. 6100. in accordance with the second paragraph of the article, the decision to resist has been sent to our Department for review.
Dairemizce decision upon examination, each date 05/11/2013 2013/8211 based on the decision of the Local Court in the case 2013/13805 are given for the denial of the provision contained in the file and this time the deterioration of the provisions of the construction contract an inspection in conjunction with the other evidence in the evaluation where the error is reduced, our evaluations were based upon that decision and the court’s decision yanilgili were understood to be in place.
The decision of the local court to resist for the reasons described must be upheld.
CONCLUSION: 1-Since it is understood that the provision of resistance issued by the court is in place, our department has decided to ABOLISH Decision No. 2013/8211 – 2013/13805 of 05/11/2013 on the deterioration of the aforementioned decision of the court,
2- It was unanimously decided on 09.03.2017 to approve the provision for the reasons described above by rejecting the appeals of the plaintiff’s deputy, to charge the approval fee written below to the appellant.
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