REPUBLIC OF TÜRKİYE COURT OF CASSATION General Assembly of Civil Chambers
Basis No: 2017/14-1761
Decision No: 2018/407
Date: 28.02.2018
SUBJECT: Title Deed Cancellation and Registration Lawsuit – Right of Pre-emption (Ön Alım Hakkı) – Determination of whether the historical usage by shareholders constitutes Actual Partition (Fiili Taksim) – Whether the exercise of the right of pre-emption violates the Rule of Good Faith (Dürüstlük Kuralı) – Reversal of the Decision of Resistance.
S U M M A R Y
The lawsuit concerns the request for title deed cancellation and registration based on the legal right of pre-emption. In the concrete case, the expert report and the attached sketch dated 04.05.2012 indicate that specific sections are used by shareholders Ş.F., O.I., the plaintiff, and S.F., while the remaining part is a vacant plot. As seen in the sketch, there is no specific section allocated to the share purchased by the defendant.
Therefore, it is impossible to speak of the existence of an “actual partition” (fiili taksim) on the immovable property. Consequently, the plaintiff’s exercise of the right of pre-emption does not constitute a violation of the rules of good faith (TCC Art. 2). Thus, the Local Court’s resistance against the Special Chamber’s reversal decision is contrary to procedure and law, and the decision of resistance must be reversed.
J U D G M E N T
The legal right of pre-emption is a right attached to the property (eşyaya bağlı) which grants other shareholders the priority to purchase a share under the same conditions if a shareholder sells their share to a third party (TCC Art. 732).
Actual Partition is defined by judicial precedents as a situation where shareholders of the immovable property—subject to the pre-emption right—partition the land specifically among themselves, with each shareholder utilizing a determined section. While there is no explicit statutory provision stating that pre-emption cannot be used in the presence of actual partition, the Rule of Good Faith (Article 2 of the Turkish Civil Code) dictates that a shareholder who has not claimed rights over a specific section for a long time cannot exercise pre-emption against a third party who purchases that specific section.
In the present case, since the area corresponding to the share purchased by the defendant was vacant and not specifically utilized/allocated, the defense of actual partition fails.
CONCLUSION: The decision of resistance is REVERSED (BOZULMASINA) in accordance with the reasons stated in the Special Chamber’s reversal decree. It was decided UNANIMOUSLY on 28.02.2018.