FINALISATION OF CADASTRE
Articles 11 and 12 of the Cadastral Law (KK) on the announcement and finalisation of cadastral minutes are as follows.
According to Article 11 of the Law on Cadastre: “The cadastral director, based on the determinations made according to the cadastral minutes, prepares the suspense tables; announces these tables and sheet samples for 30 days at the directorate and also at the headman’s workplace; states that those who have objections can file a lawsuit at the cadastral court within the announcement period. Cadastral fees shall also be indicated in this announcement.
The cadastral director is obliged to carry out these procedures within three months at the latest from the date the cadastral team finishes its work in the working area.”
According to Article 12 of the KK; “After the 30-day announcement period, the delimitation and determinations of the cadastral minutes for which no lawsuit has been filed shall be finalised.
The minutes approved and finalised by the cadastral director and the finalised decisions of the cadastral court shall be registered in the land registers within 3 months at the latest by indicating the date of finalisation as the date of registration.
After ten years from the date of finalisation of the minutes pertaining to the rights, delimitation and determinations specified in these minutes, no objection can be made and no lawsuit can be filed on the basis of legal grounds prior to the cadastre.”
According to this provision, if no lawsuit is filed against the cadastral minutes resulting from cadastral surveys within 30 days, these minutes are finalised upon the approval of the cadastral director. The finalised minutes shall be registered in the land registry within 3 months at the latest. After the minutes are finalised, those who claim to be the real right holders may file a lawsuit for correction of the land registry on the grounds that the registration is unlawful. However, according to Article 12 of the KK, this lawsuit is subject to a grace period. According to this provision, no objection can be made and no lawsuit can be filed on the basis of legal grounds prior to the cadastre, after ten years from the date of finalisation of the minutes of the rights, delimitation and determinations specified in the minutes.
This 10-year period is a forfeiture period. It must be taken into consideration ex officio by the judge. Since it is a prescriptive period, it cannot be interrupted or suspended.
The decisions of the Court of Cassation on this subject are as follows “In Article 12/3 of the Law No. 3402, it is stated that claims based on pre-cadastral legal grounds cannot be asserted after 10 years from the date of finalisation of the cadastral minutes.
Again, the purpose of adopting the prescription periods in the Cadastral Laws is to protect public order. With the prescriptive period, not the right to property, but the freedom to claim rights is restricted for a certain period of time. Since these periods are directly related to public order, they must be observed by the court automatically, regardless of the stage of the case.
In the concrete case, the lawsuit was filed on 21/05/2001, the plaintiffs relied on the renunciation of inheritance agreement dated 1970, the cadastral determination of the immovables was made in 1979, and the determinations were finalised on 07/07/1982 and 31/03/1980. According to all these explanations, the claim of the plaintiff is based on legal grounds prior to the date of cadastral determination.
In that case, in accordance with the above explanations and the article of the law, since the 10-year prescriptive period has elapsed between the date of finalisation of the cadastral determination and the date of the lawsuit, since the prescriptive period can be observed at every stage of the lawsuit, and considering that the previous reversal will not create vested rights for the parties since it is a matter of public order, it was not correct to decide to dismiss the lawsuit due to the prescriptive period, but it was not correct to make a decision of acceptance as written, and it required a reversal.”
“The court has made a written judgement on the grounds that the lawsuit was filed based on the reasons prior to the determination and that the plaintiffs have inherited rights. However, according to the regulation in Article 12/3 of the Law No. 3402, such lawsuits can be filed within a period of 10 years from the date of finalisation of the cadastral determination.
In the concrete case; it is understood from the scope of the file that the cadastral determination of the immovable property numbered 11 parcel was finalised in 1987 and the immovable property numbered 12 parcel was finalised in 1984. The present lawsuit was filed on 25.11.2013, and accordingly, it is undoubted that the 10-year period stipulated in the law has expired as of the date of the lawsuit. As such, while it should be decided to dismiss the lawsuit due to the statute of limitations, it is inappropriate to disregard this aspect and to decide to accept the lawsuit on written grounds, and it is also inappropriate to establish a judgment that cannot be executed by not showing the shares cancelled and decided to be registered and those in whose favour the registration decision was made,”
It is also not possible to file a lawsuit in cases where third parties are protected by the principle of trust in the land registry. (Art. 1023 of the TCC) or the ordinary statute of limitations (Art. 712 of the TCC). In other words, the immovable immovables that are registered incorrectly within the 10-year period, the acquisition of those who gain real rights in good faith by relying on this registration is protected.
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