T.C.
JUDGMENT
GENERAL ASSEMBLY OF LAW
E. 2014/8-1422
K. 2015/1107
T. 27.3.2015
– REQUEST FOR EVICTION OF THE LEASED IMMOVABLE PROPERTY THROUGH EXECUTION WITHOUT EXECUTION (COMPLAINT AGAINST THE EXECUTION OFFICER – THE COMPLAINANT IS THE TENANT OF THE OWNER OF THE USUFRUCT RIGHT ANNOTATED TO THE TITLE DEED IT IS STATED / IT IS STATED IN THE SUBMITTED DOCUMENTS THAT THE RIGHT OF USUFRUCT HAS BEEN ABANDONED – THE COURT WILL INVESTIGATE WHETHER THE OCCUPATION IS JUSTIFIED BY SUBPOENAING THE LAND REGISTRY RECORDS)
– COMPLAINT AGAINST THE EXECUTION OFFICER (REQUEST FOR EVICTION OF THE LEASED IMMOVABLE PROPERTY THROUGH EXECUTION WITHOUT JUDGEMENT – THE COMPLAINANT IS THE TENANT OF THE OWNER OF THE RIGHT OF USUFRUCT ANNOTATED TO THE TITLE DEED IT IS STATED / IT IS STATED IN THE SUBMITTED DOCUMENTS THAT THE RIGHT OF USUFRUCT HAS BEEN ABANDONED – THE COURT WILL EVALUATE WHETHER THE OCCUPATION IS JUSTIFIED OR NOT BY SUBPOENAING THE LAND REGISTERS AND REACH A CONCLUSION)
– THE RIGHTFULNESS OF THE OCCUPATION WILL BE INVESTIGATED (THE COMPLAINANT STATES THAT HE IS THE TENANT OF THE OWNER OF THE RIGHT OF USUFRUCT ANNOTATED TO THE TITLE DEED – THE ABANDONMENT OF THE RIGHT OF USUFRUCT IN THE SUBMITTED DOCUMENTS THE COURT WILL EVALUATE WHETHER THE OCCUPATION IS JUSTIFIED OR NOT BY SUBPOENAING THE TITLE DEED RECORDS – REQUEST FOR EVICTION OF THE LEASED IMMOVABLE PROPERTY THROUGH EXECUTION WITHOUT JUDGEMENT)
– BEING A TENANT OF THE OWNER OF THE RIGHT OF USUFRUCT (REQUEST FOR EVICTION OF THE LEASED IMMOVABLE PROPERTY THROUGH EXECUTION WITHOUT EXECUTION – THE DOCUMENTS SUBMITTED STATE THAT THE RIGHT OF USUFRUCT HAS BEEN ABANDONED / THE COURT WILL EVALUATE WHETHER THE OCCUPATION IS JUSTIFIED BY SUBPOENAING THE TITLE DEED RECORDS AND REACHING A CONCLUSION BY EVALUATING WHETHER THE OCCUPATION IS JUSTIFIED) 2004/M.18,276
SUMMARY : The lawsuit is related to the request for eviction of the leased immovable. Although the complainant claimed that the usufruct right holder annotated on the title deed is a tenant with a dealership agreement and that he rightfully occupied the immovable subject to eviction and execution with writ of execution, it is understood that the usufruct right has been abandoned and that there is a lease annotation in favour of a company other than the plaintiff from the title deed record submitted to the court after the decision correction stage by the attorney of the owners of the immovable subject to the case. In that case, in the face of the fact that it is stated that the usufruct right has been abandoned in the documents submitted after the reversal decision of the Special Chamber, a hearing should be opened by the local court in accordance with Article 18/3 of the EBL and the said title deed records should be summoned and it should be evaluated whether the occupation of the complainant in the immovable requested to be evicted is justified or not and a decision should be made according to the result to be reached.
CASE : At the end of the trial held due to the application to the legal remedy of complaint; Upon the request of the complainant’s attorney to examine the decision dated 15.05.2012 and numbered 2012/453 E., 2012/446 K. given by Antalya 2nd Execution Law Court regarding the rejection of the complaint, the decision was first examined by the 8th Civil Chamber of the Court of Cassation on 09.10.2012 and 2012/7929 E.-2012 /8889 K.; upon the request for correction of the decision of the complainant’s attorney, this time with the decision of the 8th Civil Chamber of the Court of Cassation dated 25.03.2013 and numbered 2012/15257 E.- 2013/4252 K., the request for correction of the decision was accepted;
(… The proceeding was initiated against E… Petrol on 16.09.2005, based on the evacuation commitment dated 09.05.2003, subject to the follow-up file. The creditor requested the removal of the objection and evacuation at the Civil Court of Peace for the continuation of the proceedings that stopped upon objection. The court ruled for the eviction of this tenant with the decision dated 23.12.2011. In order to execute the judgement, when the tenant went to the property for eviction on the same file, the third party C… K…. Turz. Tic. Construction. Eng. Pet. Prod. Taş. Ltd. Şti. and rented the place from the usufructuary Shell- T… Petrol A.Ş. with the dealership agreement dated 08.06.2010, the Enforcement Directorate gave a ten-day period for the eviction of the place. The third party filed a complaint for the cancellation of the eviction proceeding against him based on his superior right and since he was not a party to the judgement, the Court decided to dismiss the complaint on the grounds that the personal right of tenancy was based on, the real right was not relied on and that he rented the place from T… Petrol A.Ş., which was the defendant in the judgement, and that it was not possible to apply Article 27 of the BEC.
In the execution of the eviction judgements of the Civil Court of Peace based on the tenancy agreement, it is seen that Article 276 of the BEC, which finds application with the reference to Article 41 of the BEC, regulates that the eviction will be stopped if a person other than the tenant is found in the place to be evicted and shows an official document that he is justified in occupation.
In the concrete case, it is understood that the complainant submitted the dealership agreement by stating that Shell-Turcas Petrol A.Ş. is the lessee of Shell-Turcas Petrol A.Ş., and in the official deed dated 02.04.2003 and numbered 2489 issued at the Land Registry Office, which was also submitted to the execution file, it is understood that N. Y., the owner of the immovable property and the judgement creditor, has established a usufruct right on the immovable property for the sale of fuel service station products to T… Petrol A.Ş. for fifteen years to use “personally” or “bilvasıta”
In this case, it is understood from the official deed that the complainant was present in the immovable property with the dealership agreement he rented from Shell-Turcas Petrol A.Ş. on 08.06.2010 and that he rightfully occupied the immovable property within the scope of the mentioned article. For the reasons explained, it is seen that the court decision should be reversed, but it was approved by our Chamber, and the request for correction of the decision of the complainant’s attorney should be accepted…),
The case was reversed and the file was returned to its place, and at the end of the retrial; the court resisted the previous decision.
The decision of the General Assembly of Civil Chambers was examined and after it was understood that the decision of resistance was appealed in due time and the papers in the file were read, the necessity was discussed:
DECISION : The request is related to the cancellation of the bailiff’s action by way of complaint.
The complainant’s attorney stated that there is a usufruct right annotation of T… Petrol AŞ for 15 years as of 02.04.2003 in the title deed record, the company merged with S… Petrol and took the title of Shell Turcas A.Ş., and the company signed a 5-year Fuel Dealership agreement on 08.06.2010 and an Autogas Dealership agreement on 13.07.2010. 2010 with the company, which merged with S. Petrol, and signed a dealership agreement by relying on the publicity of the land registry, and that there is no court decision against his client, and requested a decision to annul the Antalya Enforcement Directorate’s eviction proceeding dated 02.05.2012.
As a result of the examination made on the file, the court rejected the complaint on the grounds that the complainant’s tenancy is based on his personal right and that he rented the place from T… Petrol AŞ, which appears as the defendant in the eviction order, and that it is not possible to apply Article 27 of the BEC, and the decision was first approved by the Special Chamber upon the appeal of the complainant’s attorney, and upon the request for correction of the decision of the plaintiff complainant’s attorney, this time it was reversed with the reason explained above, and the court decided to resist with the previous grounds.
The decision of resisting was appealed by the complainant’s attorney.
The dispute before the General Assembly of Civil Chambers centres on whether the occupation of the plaintiff, who was found to be an occupier of the immovable during the execution of the evacuation decision based on the proceedings and who was not a party to the evacuation decision, is based on a just cause and whether it should be evacuated according to the result to be reached.
In the execution file numbered 2009/18657 of Antalya 2nd Execution Directorate; based on the eviction commitment dated 09.05.2003, a proceeding for eviction was initiated against E… Petrol Ltd.Şti on 16.09.2005. As a result of the lawsuit for evacuation filed for the continuation of the proceedings that stopped upon objection; With the decision of Antalya 2nd Civil Court of Peace dated 23.12.2011 and numbered 2010/930 E.-2011/1871 K., the plaintiff N. Y. on 18.11.2005 by the defendants E… Petrol Ltd, the plaintiff N. Y. filed a lawsuit against the defendants S… T… Petrol AŞ and T… Petrol AŞ on 18.11.2005 for the evacuation of the leased property, the immovable property numbered 7822 block 1 parcel was leased by the plaintiff to the defendant, the plaintiff later transferred the usufruct right to the third party, the defendant made an evacuation commitment on 09.05.2005. 2005, but did not evacuate the leased property, the ownership belonged to the plaintiff and the lease agreement was signed between the plaintiff and the defendant, upon the failure to evacuate the immovable property, a proceeding was initiated on 16.09.2005, it was decided to accept the lawsuit on the grounds that the evacuation commitment was valid, and the decision upon reversal was not appealed and became final on 13.04.2012. When the evacuation of the property for the purpose of execution of the execution, the third party complainant C… Kanyon Tur. Tic. İnş. Eng Pet. Ltd. Şti. and the company representative declared that he rented the place from the usufruct holder Shell-Turcas Petrol AŞ with a dealership agreement dated 08.06.2010. After the Execution Directorate gave a ten-day period for the evacuation of the place, the current lawsuit was filed.
“If there is a person other than the tenant in the place where eviction is requested and he cannot show an official document that he is justified in occupation, he shall be evicted immediately.
However, if this person cannot show an official document, but declares that he has been occupying the place since a time before the date of the contract submitted to the office and this declaration is confirmed by the investigation to be made by the enforcement officer in the place, the officer shall postpone the eviction and notify the enforcement court within three days.
The authority, after hearing the parties, orders the eviction or decides that one of the parties must apply to the court within seven days. If an application is made to the court within this period, action shall be taken according to the outcome of the case. The provisions of Article 36 shall also apply here. The party who does not file a lawsuit shall be deemed to have waived his claim.
The debtor’s progeny and descendants, husband or wife, relatives by blood and marriage up to the second degree, business partners and other persons who are understood to reside in the dwelling house in relation to the debtor shall not be considered as third parties in the application of the provisions of this article.”
In the evaluation of the concrete case in the light of the aforementioned legislation; Although the complainant claimed that Shell-Turcas Petrol AŞ, the owner of the usufruct right annotated to the title deed on 02.04.2003, was the tenant of Shell-Turcas Petrol AŞ with a dealership contract and claimed that he rightfully occupied the immovable property subject to eviction and execution with writ of execution, 28. 01.01.2011, the usufruct right was cancelled and there is a lease annotation in favour of a company other than the plaintiff, it is understood from the title deed record submitted to the court by the attorney of the owners of the immovable subject to the lawsuit after the decision correction stage and the decision of Antalya 8th Civil Court of First Instance dated 12.12.2012 and numbered 2012/421-565.
In that case, in the face of the fact that it is stated that the usufruct right has been cancelled in the documents submitted after the reversal decision of the Special Chamber, a hearing should be opened by the local court in accordance with Article 18/3 of the EBL and the said title deed records should be summoned and it should be evaluated whether the occupation of the complainant C… K… Ltd. Şti in the immovable property requested to be evicted is justified or not and a decision should be made according to the result to be reached.
During the discussions in the General Assembly of Civil Chambers, it was stated that the decision of resistance should be approved due to the finalisation of the eviction decision, but this opinion was not adopted by the majority of the Board.
The decision of resisting should be reversed with the different justification explained above.
CONCLUSION : With the acceptance of the appeals of the complainant’s attorney, the decision to resist should be reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being implemented with the reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100 with Article 30 of the Law No. 6217 for the different reasons shown above. It was decided by majority of votes on 27.03.2015 that the other appeal requests of the plaintiff-complainant’s attorney shall not be examined for the time being, and the pre-appeal fee shall be returned to the depositor upon request.
You can access our other article examples and petition examples by clicking