General Assembly of the Law 2013/2268 E. , 2015/1437 K.
- CANCELLATION AND REGISTRATION OF LAND TITLES
- THE RIGHT OF PREEMPTION
- SHARED OWNERSHIP GRANT
- Article 732 OF THE TURKISH CIVIL CODE (TCC) (4721)
“Text Of Jurisprudence”
At the end of the trial held due to the “preliminary” case between the parties; 10 Dec04.2012 days and 2011/750 E given by Kahramanmaraş Magistrate’s Court regarding the acceptance of the case. 2012/624 K. upon request of the defendant’s deputy to examine the decision No. 6 of the Supreme Court. The day of 02/28/2013 and the day of 2012/11057 of the Legal Department. 2013/3524 K. with Ref No.;
“…The dispute concerns the request to cancel the share registered on behalf of the defendant due to the exercise of the right of pre-emption and to register it on behalf of the plaintiff. The court decided to accept the case, and the verdict was appealed by the defendant’s deputy.
If the stakeholder assigns the share of the real estate in the state of shared ownership to the husband-wife, son or relative, this agreement, which is shown as a sale, is not actually a sale, but is an action for a purpose such as a right to inheritance or a grant, is clearly stated in the Decision on Combining Case Law No. 12/2 of 27.3.1957 days and 12, where the right to pre-emption cannot be asserted if it is alleged and proven. It is possible that the defense in this direction will be proved by all kinds of evidence, including a witness. The decision to Combine the mentioned Case Law is a violation of the rule that the person who is a party to the contract cannot defend himself or herself in the transaction
As for our case; The deputy plaintiff stated in the petition for the case that he was a shareholder of parcel 3952 ada 3, one of the stakeholders A…..the defendant’s share of the. M..stating that he sold it to , he filed a preliminary lawsuit. In the respondent’s response petition, the respondent, assignee A. B… he defended the rejection of the case by stating that he was the wife of his grandson, that the Decoupling was actually a donation, even though it was apparently a sale, that the assignee essentially donated to his grandson as a birthday present for his newborn baby, that there was no exchange of money between them, and that the right of pre-emption could not be used. The parties are relatives, and the defendant witnesses heard at the hearing sum up in their statements of a similar nature, “the defendant, the assignee A.. B.. they declared that he was constantly taking care of them, taking care of them, living in the same apartment, donating it as a birthday gift to his child. In this case, it is necessary to Dec that the sale transaction between relatives is actually a donation. While the court should have decided to dismiss the case with the acceptance that the right to preemption would not occur in accordance with the Decision to Merge the Case Law, the decision to accept the case on written grounds was not correct, the decision had to be overturned because it was not correct …”
after the re-trial, the court resisted the previous decision.
THE APPELLANT: The defendant’s deputy
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 for cancellation and registration of the title deed based on the right of presumption.
The plaintiff’s deputy, the other shareholder of the immovable property, which is one of the joint owners, is out of the case…. stating that he transferred his share to the defendant by way of sale, he requested and sued for the cancellation of the defendant’s share and its registration on behalf of his client in accordance with the pre-trial right.
The defendant’s Decency argued for the rejection of the case, stating that the transaction performed as a sale in the deed was actually a donation made between relatives, and that the right of pre-emption could not be used in the assignations aimed at donation.
The decision made by the local court to accept the case by betting that the previous shareholder is not under guardianship and the defendant is the grandfather of his wife, the defendant and his wife do not bear the title of heir, the defendant who is a party to the transaction made in the deed is bound by the contract made by the defendant, claiming that the security cannot be based on his own agreement, the decision made by the Private Department on the appeal of the defendant’s attorney was overturned for the reasons described above.
The court decided to resist by expanding the grounds in its first decision, and the defendant’s deputy appealed the decision to resist.
The dispute before the General Assembly of the Supreme Court of Law is convened at the point of whether the Decision to Combine the Case Law dated 27.03.1957 and numbered 1956/12-1957/2 can be applied in a concrete case, and accordingly, whether the plaintiff can exercise his right to pre-emption.
In resolving the dispute, it is necessary to clarify the nature of the right of pre-emption first.
As it is known, since there is a situation of joint management and use between stakeholders in shared ownership, it is important Dec stakeholders to know and get to know each other. This requirement among stakeholders as to prevent the entry of a foreign person or immovable breaking it into smaller pieces in order to avoid as much as possible in the hands of the shareholder of the stock in real estate joint collection to shareholders in order to ensure statutory preemption by limiting the right to assign the right has been granted.
The right of pre-emption is one of the installments of immovable property ownership arising from the law and it has been stated that it is a right that gives rise to innovations in the Decision to Combine Case Law No. 1/6 of 26.12.1951 days.
On the other hand, in the Decision of 20.06.1951 day No. 5/13 to Merge the Case Law, the legal nature of the right of preliminary,
“Of pre-emption, on sale of shares will be sold to a third party mefsu and to be used within one month from ittila to be used under certain conditions, such as innovation-provoking right, the chief in the path at the right of use of the unilateral declaration allows the customer to be created with a new legal situation. By using this right, the chief becomes the successor of the customer without the need to make a new contract,”it was explained.
732 of the Turkish Civil Code No. 4721 entitled “Legal Right to Preamble-Holder of the Right to Preamble”. in the article,
”If a stakeholder in the shared ownership sells his/her share in the real estate to a third party in whole or in part, other stakeholders can exercise the right of pre-emption” provision is envisaged.
Although no clear description of the right of pre-emption has been made in the mentioned regulation, the pre-emption right has been introduced only for the sale agreements, while the shareholder’s right of representation has been limited, taking into account that the basic principle is freedom of ownership and savings authority, this limitation has been limited.
This point is adopted in case law and the decision to merge and No. 5/13 20.06.1951 day in the grounds for the decision, the right of preemption of the transport properties of immovable property takyit statutory shareholder of the shares in that stock is sold to a third party if the other person a person what is the cost to the customer if within a certain period of time and gives you the authority to buy with that amount are the same rights that is stated.
As it is clear, in order to speak about the legal right of pre-sale, the share in a real estate subject to the provisions of shared ownership must be sold to a third party; the subject of the pre-sale right is the sale of shares.
Accordingly, the right of legal preemption will not arise in the case of share guarantees that are not the subject of a real sale and are not in the nature of a sale. Since the pre-sale right must be used within the terms of the sale of the share, there is no way for those who have acquired the share for a provision other than money to take it as a basis by fulfilling the same conditions.
In this context, if the security is in the form of a grant, the right of pre-sale will not be used because the grant is intended to transfer the goods to the ownership of a third party for free, but is not intended for sale. Because in the pre-sale, the amount that the person using the pre-sale right is obliged to pay to the purchaser of the share is not available in the grant, it is not possible for the person using the pre-sale right to request the transfer of the share to him without paying any price.
If the assignee claims that the assignment transaction is actually a grant, although it is shown as a sale by the purchaser of the share, in other words, in cases where it is claimed that the assignment is intended by the grant; as a rule, it is clear that the claim to the assignment will not be heard, since the defendant who secured the share is a party to the official transaction and no one can withstand his own consent.
In a concrete dispute, the defendant argues that the grant transaction made for purposes actually arising from inheritance law is shown as a visible sale transaction, dated 20.03.1957 1956/12 E. 1957/2 K. the Decision to Merge the numbered Case Law has made its claim the basis of the claim.
The scope and purpose of the Decision to Combine the mentioned Case Law is important in resolving the dispute, and in order for this decision to be implemented, it is necessary to first evaluate and Decipher whether there should be a direct inheritance relationship between the parties to the transaction.
20.03.1957 date 1956/12 E. 1957/2 K. in the final part of the binding Decision to Merge the numbered Case Law, it was stated that “Even if there is a sales contract formed if the shareholder of the joint property assigns his share to his wife and husband to his child or relative, the right to the right to the right accepted by the Civil Code in genuine sales will not occur in ahval, where the sale is dominated by purposes other than the law of non-inheritance or provisions such as grants”.
In the explanatory justification part of the said decision, “it is necessary to consider whether the point of whether it will occur if it sells to its own child or relative through withholding or other considerations based on the rules of inheritance law will also occur. Even if the price, which is an element of the sales contract, is mentioned in the middle of the sale to such relatives, there is no way to accept it as a free sale. Because the purpose of mümellik is not to take the price of his property here, but perhaps to identify him and replace him due to kinship relations,”the explanation is given.
As it can be seen, the use of the term “heir” alone, which refers to a special legal status, was carefully avoided both in the final part of the decision, which is binding, and in the justification part, which is explanatory, and the broader concept of “relative” was also included. In this case, it is impossible to accept that the decision covers only persons who are direct heirs as of the date of sale.
On the other hand, the aforementioned decision stated that, as a guide in the presence of a muvazaa claim, in this case, the determination of the purpose of the agreement is mandatory, and the fact that “the customer is the heir of the dealer” is an indication that will be evaluated in determining the quality of the agreement. In addition to the fact that the parties to the assignment are related to each other, the fact that they are “heirs” has been accepted as an indication in determining whether the purpose of the agreement is to sell, and the concept of “heir” has been given special place at this point.
In the light of the explanations made above, the date of 20.03.1957 is 1956/12 E. 1957/2 K. it seems that the Decision to Combine numbered Case Law is an exception to the rule that the person who is a party to the contract cannot defend himself or herself in the transaction and prove it with all kinds of evidence. In order for the aforementioned Decisionto be implemented, first of all, the sale should not be made directly between the heirs as of the date of sale, and the parties to the guarantee should be relatives. Sales between relatives in the form of assignment is made, the case law of the time, the decision to merge this called “Grant or inheritance law” for the purpose of S that is not, in other words, depending on the nature of the dispute between relatives and every assignment that is made concrete in the inheritance law for purposes of the assignment or grant is made, whether yonteminc must be sought with the proof, and the proof in the case that is not feasible with the use of the right of pre-emption, the assignment should be observed.
As a matter of fact, the General Assembly of the Supreme Court of Law is scheduled for 15.12.2010 days and 2010/6-572 E. 2010/656 K.; 27.04.2011 days and 2011/6-38 E. 2011/225 K.; 29.04.2011 day and 2011/6-164 E. 2011/245 K.; 08.02.2012 days and 2011/6-762 E. 2012/56 K. with 27.06.2012 days and 2012/6-239 E. The same opinion was adopted in the decisions No. 2012/411 K.
The parties are bound by the contract concluded by some members during the negotiations held at the General Meeting of the Law, dated 20.03.1957, 1956/12 E. 1957/2 K. although it has been suggested that the kinship relationship mentioned in the Decision to Combine numbered Case Law cannot be applied in a concrete case, this opinion has not been adopted by the majority for the reasons described above.
Returning to the concrete dispute in the light of the statements made; non-claimant A, who is a stakeholder in the real estate subject to shared ownership, is the defendant’s spouse’s grandfather and the defendant’s new-born baby boy was given as a birthday present, therefore the assignment made in the form of a sale was successful, the real purpose of the parties is a grant and the right of representation cannot be used in the assignment made with a grant, 20.03.1957 dated 1956/12 E. 1957/2 K. considering that in order to implement the Decision to Merge the numbered Case Law, it is sufficient to have a kinship relationship between the parties to the assignment process, direct inheritance relationship should not be sought, the decision on its acceptance should be rejected by the local court, while resisting the decision is against Dec procedure and the law.
The decision to resist must therefore be overturned.
CONCLUSION: It was decided by majority vote on 27.05.2015 that the decision to resist would be OVERTURNED due to the reasons shown in the decision to overturn the Special Chamber by accepting the appeals of the defendant’s deputy, and that the advance fee of the appeal would be returned to the depositor upon request.
You can read our other articles and petition examples by clicking here