AGAINST WHOM IS THE LAWSUIT FOR THE DETERMINATION OF THE OWNERSHIP OF THE ENCUMBRANCE FILED?
The lawsuit for the determination of the ownership of the encumbrance must be filed against all title deed owners who do not accept that the encumbrance belongs to the plaintiff.
A lawsuit for the determination of the ownership of the construction cannot be filed against the shareholders or title deed owners who explicitly declare that the construction belongs to the plaintiff. Immediately, it should be noted that this lawsuit should be filed against all title deed owners who have not made a clear statement as to whether or not the land improvements belong to the plaintiff.
THE COURT IN CHARGE IN THE ACTION FOR THE DETERMINATION OF THE OWNERSHIP OF THE CONSTRUCTION DEED
The Civil Court of First Instance is the competent court for the determination of the ownership of the encumbrance.
The competent court in the case of determination of the ownership of the encumbrance is the court where the encumbrance is located.
THE DECISION ON THE DETERMINATION OF THE OWNERSHIP OF THE ENCUMBRANCE CANNOT BE PUT INTO EXECUTION BEFORE IT IS FINALISED
The judgement regarding the determination of the ownership of the property cannot be executed before it is finalised. Likewise, the judgement costs and attorney’s fee in the judgement cannot be enforced without finalisation, since they are the accessories of the judgement.
The debtor’s attorney applied to the execution court for the cancellation of the proceeding, claiming that the judgment subject to the proceeding has not been finalised and cannot be made the subject of the proceeding before it is finalised, and the court decided to reject the complaint on the grounds that the request in the judgment based on the proceeding is related to the determination that the buildings on the 324 parcel were built by the plaintiff, and that it is not related to the real estate, and that it can be executed without finalisation. The debtor’s application to the enforcement court is related to the fact that the judgement, which is the basis of the proceeding, is related to the determination of ownership (muhtesat) and therefore cannot be executed before it is finalised. When the judgement which is the basis of the proceeding is examined; it is seen that the debtor’s request for the determination of ownership (muhtesat) was rejected by the court. In this case, the judgement subject to the proceeding is related to the determination of ownership in terms of the debtor, and it is not possible to be put into execution before it is finalised, and the receivables that are the auxiliary of the judgement cannot be put into execution before the judgement is finalised (Y12HD-Decision: 2019/6660).
THE RELATIONSHIP BETWEEN THE DETERMINATION OF THE OWNERSHIP OF THE PROPERTY AND THE EVACUATION OF THE DISPUTE
It is accepted in the doctrine and in the ongoing practices of the Court of Cassation that there is a current legal interest in filing a case for the determination of the encumbrance in exceptional cases such as the existence of a pending case for the elimination of the partnership, urban transformation application or expropriation.
In the concrete case, the Hendek Civil Court of Peace, which was opened about the immovable property subject to the lawsuit, decided to deem the dissolution of the partnership lawsuit numbered 2015/207-550 as not filed, and the relevant court ruling was finalised on 01.12.2015 without appeal, and since there is no pending izale-yi şuyu lawsuit, it cannot be said that the plaintiff has a current legal interest in filing a determination lawsuit. While the court should have decided to dismiss the case procedurally due to the lack of legal interest (Article 115 of the CCP), it was not deemed correct to make an acceptance decision by examining the merits of the case as written (Y14HD – Decision: 2018/589).
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