T.R. Supreme Court
16.Legal Department
Base: 2015/20772
Decision: 2016/7160
Decision Date: 29.06.2016
TITLE CANCELLATION AND REGISTRATION CASE – EXTERNAL SALE OF THE TITLED PROPERTY – THE NEED TO MAKE A JUDGMENT BASED ON THE FAIR VALUE TO BE CALCULATED AS OF THE DATE ON WHICH THE TRANSFER OF THE PROPERTY THROUGH TITLED DEED BECOME IMPOSSIBLE – THE JUDGMENT IS REVERSED.
SUMMARY: In the valid sales contract for the transfer of the immovable property, which did not have a title deed at the time it was made between the heirs of the parties, the title deed created in the name of the seller after the sale should have been made according to the market value to be calculated as of April 26, 1966, when the transfer of the immovable property through title deed became impossible for the seller. However, it was inappropriate to make a decision by making a mistake in the characterization of the case and the appreciation of the evidence, and it was decided to overturn the procedural and illegal provision by accepting the appeal objections of the defendants’ attorney for these reasons.
(4721 Law No. 706) (6098 Law No. 237) (2644 Law no. 26) (1512 Law No. 60)
Case: It is requested that the decision given as a result of the case between the parties be examined by the Supreme Court with a hearing; On the day and time specified for the hearing, the appellant …, etc. attorney Lawyer … and … against whom an appeal is requested …, etc. Deputy Lawyer… they came. The hearing started in front of the people who came. It was announced that the hearing was over after the oral statements of the parties were heard. The examination report and the documents in the file were read within due time. It was discussed that:
Decision: As a result of the cadastral survey, the immovable property with a surface area of 6,600.00 square meters, parcel numbered 218, located in the study area of … has been registered. The plaintiffs … and their friends claimed that the immovable property was purchased from the determined owner … by their heirs … in 1962, after the cadastral determination but before its finalization, that the possession of the immovable property has been with them since the date of sale, even after the death of their heirs and their testators, and that the defendants did not agree to transfer the title deed, and that the title deed record in the name of the defendants was canceled, and if it was not registered in their names in proportion to their inheritance shares, the price of the immovable property based on its current value and the price stated in the sales contract. They filed a lawsuit demanding that the current value of the 500.00 TL penalty clause be paid to the parties. At the end of the trial, the court accepted the plaintiffs’ claims for compensation; It was decided that 204,600.00 TL would be collected jointly and severally from the defendants and paid to the plaintiffs; The verdict was appealed by the defendants’ attorney.
Conclusion: Although the court ruled in writing that the external sale of the registered immovable property is not legally valid, but that the use of the immovable property by the plaintiff for more than 20 years based on external sales will cause the title deed to lose its legal value and that the plaintiffs are in possession of the property, the research and examination are not sufficient to make a decision, and the conclusion and the characterization of the case are not appropriate for the scope of the file. It is undisputed that written contracts regarding the sale of real estate registered in the land registry are not legally valid because they are not made in an official form (TCC Art. 706, TBK Art. 237, Land Registry Law Art. 26 and Notary Law Art. 60). For this reason, they can claim what they gave to the parties according to the rules of unfair acquisition, as it will not create rights and obligations for the parties, as in valid contracts. There is no formal requirement stipulated in the law regarding the transfer of immovable properties that are not registered in the land registry, and an agreement between the parties and the transfer of possession of the immovable property to the purchaser as a result of this agreement is sufficient. After the transfer of possession, it does not affect the validity of the contract made before the title deed record for the immovable property was created. As for whether the sales contract made between the plaintiffs’ trustee and the defendants’ trustee is a valid contract; The plaintiffs filed the lawsuit after the determination and before the finalization date, in other words, based on the sale dated 18.02.1962 made by the determined owner about the immovable property for which the title deed has not yet been registered and the possession they have had since the date of sale. From the scope of the file, it was determined that the possession of the real estate was with the plaintiff until the date of the lawsuit. For this reason, after the sale and transfer of possession to the plaintiffs’ deceased, the creation of the title deed in the name of the defendants’ deceased does not affect the validity of the contract made between the parties’ heirs. Since the limitation period will not run as long as the possession is on the purchasing side, the court’s acceptance that the contract is invalid and the defendant party’s appeal objections in this regard are invalid. Another issue is that in cases filed based on a valid contract, if title deed cancellation and registration are not possible, the requested price is calculated on what date and according to what value. In the contract made between the parties, the seller… is not the registered owner of the real estate as of the date of the case. For this reason, it is clear that the plaintiffs cannot request the cancellation of the title deed and its registration in their names, as it has become impossible for the seller to transfer the immovable property that he does not own through title deed. Since the court ruled that the current price of the real estate on the date of the case be paid to the plaintiff and the plaintiffs did not appeal against the decision, the subject of the appeal review is whether the price assessed by the court is in accordance with the law. Then, first of all, it must be determined when performance becomes impossible. The seller of the disputed real estate was registered by default on April 20, 1966, and 6 days later, on April 26, 1966, it was officially transferred to his wife …… due to a grant. In other words, since the seller transferred his real estate to another person through title deed, the transfer to the plaintiff party became impossible as of April 26, 1966. After the death of … in 2004, it was transferred to the defendant heirs in 2007 and the fact that the heirs of … and … are the same does not change this result. Moreover; The plaintiffs have no claim that…’s transfer of the real estate to his wife… due to the grant was collusive, and there is no lawsuit filed within the time limit based on this allegation of collusion. That being the case; In the valid sales contract for the transfer of the immovable property, which did not have a title deed record at the time it was made between the heirs of the parties, the decision should be made according to the market value to be calculated as of April 26, 1966, when the title deed formed in the name of the seller after the sale became impossible for the seller to transfer the immovable property through title deed. However, it was inappropriate to make a decision in writing by making a mistake in the characterization of the case and the appreciation of the evidence, and the appeal objections of the defendants’ attorney were accepted for these reasons and the verdict contrary to procedure and law was REVERSED, the Supreme Court hearing. On 29.06.2016, it was unanimously decided that the attorney fee of 1,350.00 TL determined for the case would be collected from the plaintiffs and given to the defendants who represented themselves with an attorney at the hearing, and that the prepaid appeal decision fee would be refunded to the appellant defendants upon request.