General Assembly of Law 2013/1693 E. , 2015/1135 K.
“Text Of Jurisprudence”
COURT : Izmir 9.Executive Civil Court
DATE : 23/05/2013
NUMBER : 2013/240 E-2013/345 K.
At the end of the trial held for the complaint of “Decommissioning” between the parties, Izmir 9.02.11.2012 day and 2012/806 E, which were issued by the Executive (Civil) Court regarding the rejection of the complaint.-2012/796 K. upon the request of the deputy complainant to examine the decision No. 12, the Court of Cassation.The day of 03/14/2013 and the date of 33312/2012 of the Legal Department.-2013/9415 K. by his numbered decision;
(… Article 26 of the Land Registry Law.article and TMK.nun 1009.the right based on the sales promise agreement, which is a personal right in accordance with the article, acquires the same effectiveness and publicity as being processed in the land registry. 26 Of the Land Registry Law.according to Article 3 of this right for a period of 5 years.it can be argued against people.
In the concrete case; The third person who complained about the sales promise agreement dated 14.09.2009 made by the notary public of the follow-up debtor Seher Gundogan is Y.. S..it was seen that the company promised to sell the real estate subject to the complaint and the land registry of this sales promise agreement was annotated on 02.10.2009, and the real estate in question was foreclosed on 23.11.2011.
In this case, it is understood that the complainant’s promise of sale was placed by the creditor of the promise of sale in the land registry of real estate before the foreclosure date, while the court should decide on the merits of the complaint by examining the court, recognizing that the complainant has an active hostility license, the rejection of the request with a written justification is not accurate …)
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.
THE APPELLANT: The complainant’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 request is related to the request to remove the foreclosure placed after the commentary on the real estate sales promise agreement in the land registry of the immovable property.
The complainant’s deputy and debtor (out of the case) Seher Gundogan has a real estate sales promise agreement, which was amended on 02.10.2009 in favor of her client, on the shares in the real estate of which she is a shareholder, and this interpretation is in accordance with the Turkish Civil Code (TMK.) 1009 and the Land Registry Law (Tapu K.) in accordance with Article 26, it may also be brought against third parties for five years; therefore, the foreclosure dated 23.11.2011, which was later placed (from the follow-up file entered by the creditor complained of), will not have consequences; he claimed that they had filed a case for cancellation and registration of the title deed in the First Instance Civil Court against the said debtor, and that their request for the removal of the foreclosure had been rejected by the executive director, and requested that the decision be made to remove the foreclosure.
After the interpretation of the contract of sale promise to the deed by the examination of the documents by the Executive Court, the tally and deducted comments placed in the land registry will not aggravate the situation of the person who has been promised a sale in favor of; however, as the cebri registration case filed by the aforementioned person has concluded and he cannot request the removal of the foreclosure in the face of the fact that the registration process has not yet been made in his name, the decision to reject the request was overturned by the Special Department on the appeal of the complainant’s attorney on the grounds shown above, and the court decided to resist by expanding the previous justification.
The decision to resist was appealed by the deputy complainant.
The dispute before the General Assembly of the Law is convened at the point where the person who has been given the promise of sale of immovable property in favor of him has an active driver’s license (complaint tracking authority) in order to file a complaint about the removal of the foreclosure placed by the enforcement directorate after this comment.
According to Article 16 of the Enforcement and Bankruptcy Code (cases and cases resolved by law are left to the general or special courts to be kept separate), the treatment of enforcement and bankruptcy offices may be applied to the enforcement court through a complaint due to their violation of the law or non-compliance with the incident. The right of application, as a rule, belongs to the creditor and debtor, who are the parties to the execution file; in exceptional cases, it is also possible for third parties whose rights are infringed to apply to the complaint path.
The real estate sales promise agreement is a personal right contract as a rule, but it acquires the same effectiveness and publicity by being entered into the land registry in accordance with Article 26 of the Land Registry Law and Article 1009 of the Turkish Civil Code. According to Article 26 of the Land Registry Law, this right can be asserted against third parties for a period of 5 years. But this authority to assert is not preventive; in other words, the creditor of the promise to sell real estate cannot prevent the voluntary assignment, sale, donation or mortgage of real estate or foreclosure of real estate.
Since this comment will also be found on the land registry and therefore on the list of taxpayers during the sale of real estate by the enforcement agency, it will also be possible for the creditor of the promise of sale to assert his right against the new owner. In this case, the complainant has no current legal interest in resorting to the complaint method at the current stage.
Considering the explanations made above together, the real estate sales promise creditor is not a party to the enforcement file, nor is he one of the third parties allowed to go down the path of complaint because he does not have the right of ownership over the real estate.
For this reason, the decision to resist the rejection of the complaint from the absence of follow-up authority given by the local court was correct and had to be upheld.
S O N U O : Complainant Y.. S.. it was unanimously decided on 01.04.2015 that the decision of the deputy to accept the appeals and resist was UPHELD for the reasons shown above, and that there was no need to receive fees other than the necessary appeals fee had been received in advance.
You can read our other articles and petition examples by clicking here