WHAT IS LEGAL INCOMPETENCE IN TITLE DEED CANCELLATION CASE?
Legal incapacity refers to cases where a person does not have the power of appeal or the capacity to act. Incapacity is the lack of the ability to understand, evaluate and distinguish the causes and consequences of one’s actions and transactions. Everyone who transfers the immovable property in the land registry must have the power of appeal and the capacity to act at the time of the transfer (Art. 9 of the Civil Code). According to the Civil Code, the capacity of appeal is the power to understand, evaluate and distinguish the causes and consequences of an individual’s behaviours, actions and transactions. For example; a person who is under 18 years of age, who is intoxicated at the time of transfer, who has mental weakness, who has lost the ability to act rationally due to old age or any of these reasons does not have the capacity to act.
Real estate sales transactions and real estate transfers in the title deed made by the person who does not have the capacity to act are illegal and are subject to title deed cancellation and registration lawsuit. Title deed cancellation and registration lawsuit; It is filed in order to bring the title deed record, which is alleged to be illegal, irregular or corruptly issued, into compliance with the law. Since the action for cancellation of title deed is a lawsuit regarding the same of the immovable property, i.e. the right of ownership, the court judgement cannot be enforced before it is finalised.
It should be noted that the claim of incompetence in title deed cancellation and registration lawsuits filed for more than one reason should be examined before other reasons. Since incompetence concerns public order, it should be examined by the court first. For example, it is contrary to public order for a person who performs a legal transaction under the influence of mental illnesses such as schizophrenia, paranoia, manic-depressive disorder (bipolar affective disorder) to produce legal results.
STATUTE OF LIMITATIONS IN THE CASE OF CANCELLATION OF TITLE DEED DUE TO LEGAL INCOMPETENCE
There is no statute of limitations or a period of limitation in the title deed cancellation and registration lawsuit filed due to legal incompetence. Incompetence requires that the transaction is deemed null and void.
The (former) Turkish Civil Code, on which the local court based its judgement, contains the provision ‘If the person who is written as the owner in the land registry without a valid legal reason continues his possession on the immovable property for 10 years without litigation and without interruption and in good faith, the property right acquired by him in this way cannot be challenged’. According to the aforementioned regulation, the granting of rights to the registered owner is subject to the condition that there is no valid legal reason for the transfer and registration. However, the incompetence claimed in the lawsuit has been accepted in practice and doctrine as a reason for a null and void transaction. Therefore, it is clear that the validity or invalidity of a non-existent transaction cannot be discussed. In this case, it is obligatory to consider that the (former) Turkish Civil Code cannot be applied in the case at hand and to investigate the claim of incapacity (Y1HD-K.2004/13418)
WHO CAN FILE A DEED CANCELLATION LAWSUIT DUE TO INCAPACITY?
The deed cancellation and registration lawsuit can only be filed by the previous owner of the immovable property to be subject to the lawsuit. The court must ex officio observe whether the person filing the lawsuit is the former owner of the registration at every stage of the lawsuit.
In lawsuits filed with the allegation of legal incompetence, a lawsuit must be filed by appointing a guardian to the real right holder who is alleged to be incompetent, and the guardian must represent him/her in legal proceedings by obtaining permission from the guardianship authority.
If the legal incapacity of the heir is in question, the deed cancellation and registration lawsuit must be filed on behalf of the estate.
AGAINST WHOM IS A DEED CANCELLATION LAWSUIT FILED DUE TO INCAPACITY?
All lawsuits regarding the ownership of immovable property and the deed cancellation and registration lawsuit are filed against the person who appears as the owner of the ownership right of the immovable in the title deed record. If the owner of the record is dead, the deed cancellation and registration lawsuit must be directed to the heirs of the owner.
If it is requested to eliminate a real or personal right belonging to a third party in the title deed record together with the deed cancellation and registration lawsuit, the owner of the right in the title deed record must also be sued. For example; if the cancellation of real or personal rights such as mortgage, pre-emption right, real estate sales promise agreement annotated to the title deed, right of peace, etc. is also requested, a lawsuit should also be filed against the persons in whose favour these rights are established.
Title deed registration actions to be filed due to extraordinary statute of limitations must be filed against the relevant legal entity and the treasury together (TMK Art. 713/3). For example, the person who has possessed the immovable property within the borders of a village for 20 years without interruption and without interruption, should file a land registration lawsuit against both the village legal entity and the treasury.
HOW TO FILE A DEED CANCELLATION AND REGISTRATION CASE DUE TO LEGAL INCOMPETENCE?
The action for cancellation of title deed due to lack of legal capacity is filed in the place where the immovable is located, like all real estate cases (Art. 12 of the CCP). The court where the immovable is located is the court of final jurisdiction. The parties cannot agree that the lawsuit will be heard in a court other than the court of final jurisdiction.
The action for cancellation and registration of title deed due to lack of jurisdiction shall be filed in the civil court of first instance (CCP Art. 2/1). Regardless of the characteristics of the immovable property such as its quality, size, value, etc., the court in charge of hearing the case is the civil court of first instance.
In the petition for cancellation and registration of title deed, firstly, the reason for legal incapacity should be clearly stated, and reports, graphs or documents, if any, should be attached to the case file. In addition, the registration information of the immovable property and its status in the land and the illegalities in the transaction made according to the characteristics of the event should be clearly explained. Since the land registry records will be brought to the case file together with the documents constituting the basis of the records, accurate information will reduce the loss of time. In the petition for cancellation of title deed, it should be emphasised in which issues expert examination is requested and what should be considered during the discovery process or when listening to witnesses.
You can access our other article examples and petition examples by clicking