OVERRIDING RIGHT IN FAVOUR OF IMMOVABLE PROPERTY
A superstructure right is an easement right that authorises the owner of the easement right to construct a building on or under the immovable property of another person, or to protect a previously constructed building, and gives the owner of the easement right a property right over the construction.
It is seen that the provisions regarding the right of superstructure are regulated in Articles 726 and 826 to 836 of the Turkish Civil Code.
If this right, which is defined as a superstructure right, is independent and permanent, it may be registered as ‘immovable’ in the land registry upon the request of the right holder. (Art. 826/3 of the TCC) Superstructure rights established for at least thirty years are considered to be permanent. In order to consider the overhead right as independent, its transfer to another person must not be restricted by the parties.
On the other hand, the easement right ends with the cancellation of the registration or the destruction of the immovable property that is loaded or benefited from (TMK Art. 783). If there is no longer any benefit provided by this right for the immovable in favour of which an easement is established, the owner of the loaded immovable may request the cancellation of this right. An easement right that provides very little benefit compared to its burden may be requested to be partially or completely abandoned in return for a price (TMK Art. 785).
As for the concrete case; … It is understood that with the decision of the Land Registry Court dated 17.04.1969 and numbered 1965/79 Main – 1969/32 Decision dated 17.04.1969 ‘It was deemed necessary to leave and record the house consisting of 2 rooms and 1 living room, which determines the upper floor of the 2791 parcel, belonging to the plaintiff …, …, … and …, and to leave and record the superstructure rights as they are in the declarations.’ It is understood that the superstructure right annotation was placed on the title deed of the immovable property numbered 2791 parcel. Since the superstructure right requested to be cancelled in the lawsuit was established for the benefit of the immovable property numbered 2791 parcel, the superstructure right established for the benefit of the immovable will continue as long as the building is not demolished, it was not deemed correct to accept the lawsuit on written grounds, while the lawsuit should be rejected, and for this reason, the decision had to be reversed (14th Civil Chamber 2018/2545 E. , 2019/101 K.)
HOW IS A TOP RIGHT EASEMENT ESTABLISHED?
The lawsuit is related to the request for the establishment of a top right easement. As a rule, the establishment of a right of superstructure is done by the parties first agreeing in writing or verbally on the establishment of a right of superstructure, going to the relevant land registry, declaring their will in the presence of the official authorised to issue official deeds and making a deed of establishment of the right of superstructure, and then asking the official to annotate or register the right of superstructure as an easement right in the immovable record.
If there is no unity of will between the parties for the establishment of the right of superstructure, and if the owner of the building has built a structure on someone else’s immovable without consent, this will be ‘wrongful construction’ and the owner of the record may sue for the prevention of wrongful seizure by making use of Article 683 of the Turkish Civil Code.
Since Article 827 of the Turkish Civil Code stipulates that an official deed shall be sought for the establishment of the right of superstructure, it should be accepted without hesitation that it is only possible to establish the right of superstructure with an official deed by the method described above. What is meant by an official deed is a contract prepared by an official officer, signed in the presence of the parties and approved by the official officer with a seal and signature.
In the concrete dispute, it is requested to establish a right of superstructure on the immovable property registered in the name of the defendant, parcel numbered …, which was formed by the merger of the immovable properties numbered …and … parcels. The basis of the plaintiff’s request is Article 6 of the agreement for the pre-authorisation of the right of superstructure executed between the parties at Istanbul 18th Notary Office on 31.01.2007. First of all, there must be a contract between the parties in order to establish the right of superstructure. Based on this agreement, they should go to the land registry pursuant to Article 827 of the Turkish Civil Code and declare their will in the presence of the official authorised to issue official deeds and make a deed of establishment of the right of superstructure, and then request the official to annotate or register the right of superstructure as an easement right in the immovable record. In the concrete case, the plaintiff made a claim based on a contract between the parties, which is not claimed to have lost its validity. As explained in the decision of the Court of Dispute numbered 1990/36-36 published in the Official Gazette dated 21.01.1991 and numbered 20762, it is the duty of the judicial jurisdiction to resolve the cases related to transactions such as registration, cancellation and rectification on land registry records. Therefore, the merits of the dispute should be examined and a decision should be made accordingly (14th Civil Chamber of the Court of Cassation 2014/13869 E., 2014/14889 K.).
REQUEST FOR ABANDONMENT OF THE RIGHT OF SUPERFICIES
The plaintiff claimed that an easement right was established on the immovable property numbered 3450 parcel in favour of the defendant on 11.12.1989 for a period of 49 years, and according to Article 7 of the agreement, it was agreed that this right would be abandoned if the easement right fee was not paid for 2 consecutive years, and that the defendant did not pay the easement right fees for the period after 1990, and for this reason, they filed enforcement proceedings against the defendant and requested abandonment.
The lawsuit is related to the request for cancellation of the easement right. In general terms, the easement right is the allocation of the immovable property by the owner to another person by making the powers granted by the property right independent from the property right. In this way, the owner imposes on others (the owner of the easement right) the authority to benefit from a property or the owner is obliged to refrain from using the authority provided by the property right.
In the concrete case, a construction right was established in favour of the defendant on the immovable property numbered 3450 parcel. According to the deed of undertaking dated 07.12.1989, which is included in the official deed and reveals the content of the easement right, a marina and its ancillary units will be built on the immovable and opened for operation. In this case, there is no doubt that the easement right established is the right of superstructure regulated in Article 827 of the Turkish Civil Code. The right of superstructure is regulated in Article 726 in the section on restrictions of immovable property of the Turkish Civil Code, and it is also regulated in Articles 826 and following in the section on easement rights. According to the aforementioned articles, the right of superstructure is an easement right contract that ensures that the ownership of the structures built on or under the land belonging to another person to remain permanently belongs to the owner of the structure. Pursuant to Article 827 of the Law, this contract can only be concluded between the owner of the land and the owner of the building in the presence of the Land Registry Director, who is an official officer, and the content of the contract is binding for everyone.
In the concrete case; the plaintiff claims that the defendant has not fulfilled its obligations arising from the contract according to the official deed that determines the content and conditions of the right of superstructure and requests cancellation. Indeed, the plaintiff filed an enforcement proceeding against the defendant claiming that the easement right fee for the 1989-1990 period was not paid, and the defendant’s objection to the proceeding was partially accepted and it was decided to continue the proceeding over the amount owed. The defendant paid the amount subject to the proceeding during the trial. The court decided to dismiss the lawsuit due to the payment of the easement fee.
As mentioned above, the scope of the easement right and the obligations of the parties are determined by the content of the official deed. According to the content of the official deed, the easement right shall be cancelled if the easement fee is not paid for two consecutive years in accordance with subparagraph C/4 of Article 7 of the letter of undertaking dated 07.12.1989 given by the plaintiff. The fact that the defendant has not paid the easement fee for two consecutive years has been established by the execution proceeding file and the cancellation of the objection to this proceeding. Subsequent payment of the price does not eliminate the defendant’s breach of contract. Since it is understood that the contract, which is binding for the parties, has been violated, it was not deemed correct to reject the lawsuit on written grounds while the lawsuit should be accepted, and for this reason, the judgement should be reversed (Court of Cassation (K) 14th Civil Chamber 2012/3598 E. , 2012/4686 K.).
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