General Assembly of the Law 2013/2393 E. , 2015/2361 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the case “Determination and registration of the expropriation Dec”; Izmir 10. 29.12.2011 Day, which was granted by the Court of First Instance on the acceptance of the case; 2010/397 E., 2011/585 K. upon the request of the deputies of the parties to examine the decision No. 18, the Supreme Court of Cassation. 16.04.2012 day and 2012/3069 E of the Legal Department., 2012/3985 K. with Ref No.;
(… According to the articles in the file, the evidence on which the decision is based, the reasons for the legal requirement, and in particular, there is no inaccuracy in the discretion of the evidence, other appeals are not in place.
But;
1-Article 15 of the Expropriation Act. according to the last paragraph of the article, the day when the documents are submitted to the court by the administration will be kept as the basis for determining the value made by experts. According to the petition in the file, the documents for the determination of the expropriation price by the deputy plaintiff were provided to the court on 16.08.2010. February August 2010, the index figure of 1994 = 100 should be 12604.31, while updating the m2 value of the real estate examined by the expert council to the date of the case (evaluation), while the index figure of August 2010 should be 12161.1 for February 2010 to determine the value by taking the figure of 12161.1,
Article 11 of the Law No. 2-2942 as amended by Law No. 4650. in accordance with subparagraph (d) of article, property tax values should also be taken into account when comparing the real estate subject to litigation with the precedent. If the ratio of the minimum m2 values based on the property tax and the ratio based on the assessment in the expert reports are exorbitantly different from each other, this difference and contradiction should be eliminated. As of 2010, the minimum value of m2 has been introduced into the property tax for the street or street to which the precedent is connected and the conformity of the expert report has not been audited in this respect,
3-A decision is made to leave the expropriated part on the road, although a request for registration is made in the lawsuit petition,
This is not considered correct. ….)
the grounds were overturned and the file was returned to its place, but at the end of the retrial, the court resisted the previous decision.
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 as of the date of the decision to resist, H.Finish….438 /II as amended by Law No. 2494.in accordance with the provision of the paragraph, the refusal of the request for a hearing was decided and discussed as necessary after the papers in the file were read:
The case concerns the determination of the expropriation price and registration requests.
Counsel for the plaintiff, the defendant, the name of the waterfall of adverse possession a gift from 1987, numbered 124 18.835 registered parcels,immovable 3.971 00 M2 32 m2 you stay on track because of the development of the plan,were expropriated by the decision of the municipal council, it was decided that the defendant has been invited to join the talks, but the reconciliation of the subject matter of the case by setting forth whether to immovable immovable determination of compensation to be determined on behalf of the mayor of the registration wanted.
Defendant Armağan Çağlayan deputy; immovable property by the plaintiff for the price offer is too low, whether the deed is usually reflected the real cost of the sales on official, the true sales price includes the cost of immovable property in the absence of the owners in the determination that they have been victims, the true price of the immovable subject to sale prices determined on the basis of the case that could be expropriated immovable portion of the oldest residential area in Izmir, adjacent to the newly established located in the town, near the sea, spacious open, stating that there is a modern construction around it and it is adjacent to Smyrna Square, which is the symbol of Izmir’s founding 5,000 years ago, he also reported its precedents.
By the court; determined based on the compensation case should be accepted with the justification that the island 1987, No. 124, 3.971 Square 32 m2 expropriation of part of the cost of 4.451.849,72 TL determination of compensation equal to their share of the land owners on the deed to the defendant to the payment of immovable 3.971 the subject matter of the case,the part of the defendants on behalf of 32 m2 with the cancellation of the deed of abandonment as the way” the decision was made; the regents of the party on appeal; the decision was quashed with Special dairec the above reasons.
Local Court; 1 of the decree on the destruction of a Private Apartment. and 2. compliance with its subparagraphs; 3.the part shown in the paragraph has been decided to be resisted. The decision was appealed by the plaintiff … his deputy in terms of both the decisions to resist and comply, and the defendants’ deputy asked for the decision to resist to be upheld, and appealed the decision made in accordance with it.
The dispute that comes before the General Assembly of the Law through resistance is collected at the point where, although a request for registration is made in the lawsuit petition, it will be decided whether to register the real estate subject to litigation about the expropriated part or to leave this part on the road.
I- The decision of the plaintiff’s attorney and the defendant’s attorney to overturn the court (1.ve 2nd.) in terms of appeals against the decision he made in accordance with subparagraph;
It is clear that the provision established by the court in accordance with paragraphs (1) and (2) of the decision on the destruction of a Private Apartment in order to determine the expropriation price subject to litigation is a new provision based on a new justification.
As such, the task of reviewing this new provision established on appeal belongs to the Special Department, not to the General Assembly of the Law.
Therefore, the file should be sent to the Special Department for the examination of the appeals of the party’s deputies in terms of the part being complied with.
II- As for the appeal of the plaintiff’s deputy against the court’s decision to resist the reason for the violation contained in subparagraph (3) of the decree on the violation;
Firstly, it should be noted that if the expropriated immovable property has turned into a quality that does not need to be registered in the register as of the public service to which it is allocated, after the registration of the title deed on behalf of the owner is canceled by the court, the decision to leave the title deed is made instead of the registration decision on behalf of the administration. The Expropriation Law is amended by Law No. 4650 l0. § 11. in the paragraph it is written that the court will decide on the abandonment of the registration record if requested, but the expropriated immovable property Cadastral Code No. 3402 16. if the road specified in the article becomes a public property that is not subject to registration, such as a lake area, the decision to leave will be made by the court personally.
999 of the Turkish Civil Code No. 4721 (TMK). according to the article, real estate that is not subject to private ownership and is reserved for public use is not registered in the register unless it is a matter of establishing a real right that is required to be registered in relation to them. If an immovable property registered in the title deed turns into an immovable property that is not subject to registration, it is removed from the land registry.
in Article 16 / B of the Cadastral Code No. 3402, it is also,
“Pasture, mountain pastures, a summer place, grassland, paid or unpaid, are allocated to where Harman and fair as public, or the public benefited prove with documents or witness statements or expert witnesses since the ancients medium-immovable property is restricted to the given number of the parcel area is calculated and entered in the special register of immovable property such as this.
As this limitation is not of a registration nature, the immovable property determined in this way is not subject to private ownership, provided that the provisions written in the special laws are reserved.
The middle goods such as roads, squares, bridges are only shown on the map.” its provisions are contained in.
715 of the Turkish Civil Code. as emphasized in the article, the goods that have been left to the public to use are under the provision and savings of the state and it is clear that they cannot be subject to private ownership in any way. A similar provision is also contained in Article 16 / B of the Cadastral Code No. 3402, it is stated that medium-sized real estate will not be subject to private ownership, and transactions cannot be made about them in writing in the property register. Village goods such as pasture, plateau, road, square are places that are freely used by everyone, without consulting anyone and without permission and permission from any authority and authority, but it is also mandatory that such places are protected and guarded by everyone.
1008 of the Turkish Civil Code No. 4721. its article regulates registration and states that the right of ownership in relation to real estate must be registered in the land registry. As is known, the expression ”Registration” is used only for real estate that may be subject to private ownership.
“Abandonment”, on the other hand, means the removal of registration in the land registry. 999 of the Turkish Civil Code No. 4721 entitled “Immovable property that will not be registered”. With the provisions 3194, 18/3 allocated to the public service specified in the zoning matter of “national primary and secondary school Ministry of education institutions, road, Square, park, Parking, children’s playground, Yesil field, such as a place of worship and the police station,” it is necessary to delete fields. Therefore, in the decision, the use of the phrase “terkinine” is absolutely mandatory.
Considering that private property has ceased to exist in the examination of the concrete event in the light of the above explanations and that there is a public interest, there is no imprecision in deciding to leave the part expropriated as a way out of the title deed.
Although during the negotiations at the General Assembly of the Law, some members demanded that the decision to resist be overturned on the grounds that it would be correct to decide on the registration of the expropriated part of the real estate subject to litigation on behalf of the plaintiff, this opinion was not adopted by the majority of the Board for the reasons described above.
For all these reasons, it is necessary to confirm whether the decision to resist is in accordance with the procedure and law to establish a provision for the abandonment of the part expropriated by the local court as a way out of the title deed.
result:
1-For the reasons indicated in paragraph (I) above; 18 of the file for examining the appeals of the attorneys of the parties in terms of the part complied with. TO BE SENT TO THE LEGAL DEPARTMENT,
2-For the reasons described in paragraph (II) above; The rejection of the appeals against the decision of the plaintiff’s attorney to resist and the APPROVAL of the decision to resist were decided by a majority vote at the second meeting held on 04.11.2015.
VOTE AGAINST
The dispute between the Local Court and our Department is to the point where, although a request for registration has been made in the lawsuit petition, it will be decided whether the real estate subject to Decommissioning as a way will be registered as a way on behalf of the plaintiff or one as a way.
As is known, by Law No. 4650 of 24.04.2001 on Expropriation Law No. 2942, changes of a revolutionary nature were made inspired by the violation decisions of the European Court of Human Rights against our State, and considerable obligations were imposed on the administration that carried out expropriation. For example, before the change, a price increase lawsuit is filed by the owner, and the owner receives it only after the decision is finalized, while after the change, the administration files a price determination and registration lawsuit, the price determined by the court is stored by the administration in the name of the owner in a national bank specified by the court, and the owner is paid with the decision. Moreover, the case filed must be concluded within four months, and if it is not concluded, the legal interest is taken under the provision from the end of the 4-month period until the decision date.
10, which concerns our concrete case. the article contains the provisions of procedure, Article 5 of Law No. 4650. a very detailed arrangement has been made with the amendment made to the article, it has been very clearly and clearly arranged how the administration will file a lawsuit, what it will ask the court for, and by following the procedures and in what time the court will conclude the lawsuit and decide what.
Article 1 of the said article. in the paragraph ” the purchasing procedure if it is performed through the administration of expropriation according to Article 7 of the collected information and documents in accordance with Article 8 to determine the price and other information and documents in this regard was made by adding petition the court of First Instance of the place where the immovable property is located shall apply to the determination of the cost of the expropriation of immovable property and, with this price in advance or if it is made according to the second paragraph of Article 3 of expropriation in return for payment by instalments, on behalf of the administration want the registration to be determined.” provision,
8. after the procedural rules on determining the price are explained in the paragraph, the court decides to register the immovable property on behalf of the administration and pay the expropriation price to the rightholder if the receipt is submitted that the expropriation price has been deposited on behalf of the rightholder by the administration or blocked for delivery to the rightholder in the future, if the rightholder cannot be identified, and this decision is notified to the land registry office and the bank where the money was deposited.” provision,
13. in the paragraph “If the expropriated property has turned into a quality that does not need to be registered as of the public service to which it is allocated, the court decides to abandon the registration if requested.” its provision is stipulated.
As can be seen, the provision on registration is clearly and clearly written in the text of the article in 3 separate paragraphs.
Accordingly, the plaintiff administration will request the registration of the expropriated real estate on behalf of the administration in exchange for payment of this price by determining the expropriation price. The court will decide on the registration of the immovable property on behalf of the administration when the receipt is submitted that the amount determined has been blocked to the bank shown in the advertisement on behalf of the right holder. In this case, the telepath will be registered, and the decision will also be registered. This is the rule.
Although this is the rule, if the expropriated real estate has turned into a nature that does not require registration as of the public service to which it is allocated, “on request” the court will decide to abandon the registration of the registry. This is the exception to the rule. If the immovable property has become a nature that does not require registration as of the public service to which it is allocated, if requested, that is, if the plaintiff’s administration explicitly requests abandonment, abandonment, if the plaintiff’s administration does not have such a request, registration will have to be decided as described above.
In light of these statements, when returning to the concrete event; part of the real estate subject to litigation was expropriated by the plaintiff … because it remained on the road in the development plan, the plaintiff … his deputy was asked to decide on the registration of the real estate on behalf of the Municipality with the determination of the expropriation price of the real estate subject to litigation. There is no demand for abandonment. In this case, the work to be done by the court will be carried out in accordance with Article 10/13 of the Expropriation Law No. 4650 of the Expropriation Law No. 2942 of the expropriated part of the immovable property amended by Law No. 4650. according to the article, the way should be to decide on registration on behalf of the plaintiff … as a result. The decision to leave without the claimant’s request and ignoring the registration request will clearly contradict the mandatory provision of the Law.
At this point, 999 of the Turkish Civil Code No. 4721. the question will arise whether the provision of the article has a place of application in the concrete case.
Indeed; Article 10 of the Expropriation Law No. 2942. in its article, there was no provision for registration before the amendment carried out in 2001 by Law No. 4650. Of course, the general law would be followed when there was no provision in the Special Law. For this reason, the courts were established before the amendment in 2001, Article 999 of the Turkish Civil Code. they were making a decision to leave by applying Article (previously Article 912 of the Turkish Civil Code corresponding to this). article 10 of the Expropriation Law in 2001. since the special regulation was introduced with the amendment made to the article, the general provision no longer has the ability to apply in terms of expropriation cases, the special provision of the law has come to the fore. While the regulation of the private law stops in the middle, the provision cannot be established by the provision of the general law. In other words, the procedures for determining the expropriation price have been amended in Article 10 of the Expropriation Law. when determining in accordance with the provisions of the article, it is inconceivable that the registration provision will be separated from the regulations in this article and issued in accordance with the general provisions. Moreover, real estate subject to expropriation is real estate subject to private ownership. However, 999 of the Turkish Civil Code. the immovable property subject to the article is immovable property that is not subject to private ownership and is reserved for the benefit of the public. These immovable properties are allocated for the benefit of the public by an administrative decision or a court decision, and no price is paid in return. For example, ancient roads, ancient pastures, allotted pastures, barracks and plateaus. Such places are in no way subject to private ownership and cannot be acquired with dignity no matter how long it reaches.
As for expropriation, this is not the case. When expropriating a real estate subject to private ownership, the expropriation process is carried out in the department of procedures and principles in the said Law. Above all, if the parties cannot agree on the price, a full price that is fair and equitable will be determined by the court and paid to the rightholder, and the property will be transferred to the administration.
However, the fact that the property has been transferred to the administration does not mean that the administration is fully owned. Because the administration is obliged to use real estate in accordance with the purpose of expropriation. On the contrary, the behavior entails the obligation to return the real estate to the former owner. 23 of the Expropriation Law. and 22. its articles regulate this obligation. Referred to 23. according to the article, the administration leaves the expropriated real estate as it is for five years, if it does not allocate it for the purpose of expropriation, the former owner may request its registration on his behalf by paying the expropriation price together with interest within a 1-year period from the end of five years. 22. according to the article, the administration may sell and dispose of this real estate as private property if the need for proper allocation for the purpose of expropriation disappears after it is used in accordance with the purpose of expropriation. However, in this case, first of all, it notifies the former owner or his heirs of the situation by notification, asking them to inform whether they will purchase the real estate. Otherwise, it will be a liability for compensation. Now is the time to ask the following question. 22 Of the Expropriation Law if a decision is made to abandon the title deed despite the explicit provision of the law and the request of the expropriating administration. and 23. how will the rights and obligations written in the article be fulfilled? Thus, in the concrete case, TMK. 10/13 of the Expropriation Law, not the general provision regulating Article 999 of the nun. the special provision set out in the article shall apply.
After such explanations, in accordance with Article 16 / B of the Cadastral Code No. 3402, there is no place for a pause when there is a place of practice in disputes in Cadastral Courts regarding cadastral places. The Cadastral Court will apply Article 16 / B of the Cadastral Code when making a decision on the public goods listed in the said article, and it will not look at how Article 10/13 of the Expropriation Law has regulated this issue. TMC. nun 999. and he won’t go to his substance. The Court of First Instance, which is looking at the case of determination and registration of the expropriation price, will also make a decision in accordance with Article 10/13 of the Expropriation Law and will not take into account Article 16 /B of the Cadastral Code. Otherwise, it makes no sense to regulate a topic or an issue by special law. As for the question of whether a place allocated for public use by expropriation by expropriation can be registered as a road on behalf of the expropriating administration; the fact that real estate expropriated as a road is registered as a road on behalf of the expropriating administration does not turn it into private property. However, due to the special provision in the Oman Law No. 6831, if the forest areas are registered in the name of the Treasury as forests, the forest does not turn into private property, the place registered in the name of the administration as a road in accordance with the Expropriation Law also does not turn into private property. The provisions of the registration shall be governed by the Expropriation Law and the rights and obligations herein shall prevail.
Finally, it should be noted that the concrete event date and 2013/18 05.11.2014 another dispute which is identical to Supreme Court-adopted Decision No. 1119 main 2014/836 to our apartment instead of the conclusion and registration of jurisprudence who made the decision to leave the Local Court’s decision to persist mostly quashed last 2/3 U. While there is no justifiable reason to give up the current case law after a year’s break, it was useful to indicate the opinion that the emergence of a different result that could be the subject of combining case law without revealing the existence of such a justifiable reason is not appropriate from the point of view of the Decency and unity of practice.
For these reasons, while the decision to overturn our Apartment is more in accordance with the provisions of the procedure and Law and the decision of the General Assembly of the Supreme Court of Law itself, I do not agree with the valuable opinion of the majority on the adoption and approval of the decision to resist the local court with contrary thoughts.
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