General Assembly of the Law 2017/1761 E. , 2018/407 K.
“text of jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial held due to the case “Cancellation and registration of title deeds based on the right to pre-registration”, which was held between the parties, Adana 1. dec. 18.12.2012 day and 2011/503 E, which were issued by the Court of First Instance on the refusal of the case. and 2012/691 K. the decision No. 14 of the Court of Cassation was appealed by the deputy plaintiff. The date of 24.09.2013 and the date of 2013/6323 E of the Legal Department. and 2013/12132 K. by his numbered decision:
“…The case concerns the cancellation of the title deed and the request for registration due to the right to pre-emption.
The defendant defended the rejection of the case by stating that there is a de facto installment in the real estate.
The court decided to dismiss the case on the grounds that there is a de facto installment in the real estate.
The decision was appealed by the deputy plaintiff.
Parcel No. 5 the plaintiff from the case Khadija stakeholders a stakeholder is immovable, Solomon, Rana, Tugba, Sevim, schema, with a cost of TL and Nevin on their share of sales through their reality 306.000 30.03.2011 transferring to share in the range of 200,000 to the defendant, and was shown to interfere with the right of preemption to high price if you wanted to use the right of preemption asserting that the defendant moved premises registered in the name of the share to the registration on behalf of 100/517 wanted.
The right of pre-emption is a right that gives other stakeholders the authority to purchase this sold share first if a stakeholder partially or completely sells his share of the immovable property to a third party in real estate subject to the provisions of shared ownership. This right arises as soon as the joint ownership relationship is established and becomes available upon the sale of shares.
If the immovable property to which the share subject to the pre-sale claim is related is privately divided among the stakeholders and each stakeholder uses a certain part while one of them sells the place used by him and the share corresponding to this place to a third party, the plaintiff who does not claim the right to this place at the time of the seller uses the pre-sale right due to the sale made in dec title deed 2 of the TMK. it is incompatible with the rule of acting honestly contained in its article. According to the Decision of the Supreme Court Case Law No. 17/1 dated 14.02.1951 on the claim of bad faith, it can be put forward at all stages of the case, as well as the court must be taken into account spontaneously. In such cases, there is no question of expanding the defense. If there is an active sharing, the case must be dismissed.
In a concrete dispute, the 184/517 share of the immovable property numbered 5 parcels of land is registered on behalf of the plaintiff, the 100/517 share is registered on behalf of the defendant, and the other shares are registered on behalf of third parties other than the plaintiff. dec. The defendant purchased this share from Khadija Tarhan and her friends on 30.03.2011. The october 04.05.2012 expert report based on the judgment includes the section marked with (C) in the sketch as the plaintiff’s printing house; the section marked with (A) and (D) as the kebab shop and the non-litigant’s part as the garden stakeholders; the section marked with (B) is used by the non-litigant’s stakeholder as the workplace and home; it is also stated that the section shown in yellow is empty and the part purchased by the defendant; in addition, there are stakeholders who do not have use on the floor. There is no evidence that the non-litigant stakeholders who sold shares to the defendant used the section of the case subject to october shown in yellow in the sketch attached to the science expert report. Therefore, since there is no section that the stakeholders who sold shares to the defendant actually use on the ground that corresponds to their share, there can be no mention that the plaintiff who uses the right of pre-emption has a bad faith. It is not appropriate for the plaintiff’s preliminary request to be rejected for this reason.
It was not considered correct to establish a verdict in writing, leaving aside the issues described by the court when the merits of the work had to be examined, the decision had to be overturned for this reason…”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and turning the file back to its place.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
The case concerns the cancellation of the title deed based on the right to pre-purchase and the request for registration.
The defendant’s deputy requested that the case be dismissed by arguing that the real estate subject to the lawsuit has actually been divided up and that each stakeholder has used its place in accordance with the actual installment.
The court decided to dismiss the case on the grounds that there was an active share in the real estate.
Upon the appeal of the plaintiff’s deputy, the decision was overturned by the Special Chamber on the grounds shown above, and the court resisted the previous decision.
The decision to resist was appealed by the deputy plaintiff.
The dispute that comes before the General Assembly of the Law through resistance is brought to the point of whether the past uses of the stakeholders on the real estate subject to litigation are in the form of an action-based installment, and according to the conclusion to be reached here, whether the plaintiff’s use of the right to pre-purchase is contrary to the rules of honesty.
Pre legal right to a stakeholder in joint ownership on immovable property to a third party wholly or partially share, sell, or share this with other stakeholder stakeholders to the same conditions authorizing the purchase of the first property connected with innovation-provoking (construction) is used with a case that is a right.
As a matter of fact, 732 of the Turkish Civil Code (TCC). article “If a stakeholder in the shared ownership sells his/her share of the real estate to a third party in whole or in part, other stakeholders may exercise the right of pre-emption. it contains the provision “. With this right, the legislator acts with the aim of ensuring that the right held by the persons who cooperate in property does not disintegrate and that third parties enter into partnership. It is clear that the right of legal pre-emption is one of the restrictions of the right of transfer. This restriction arising from the law arises with the exercise of the right. As long as the right to pre-purchase is not used, the sale to a third party will remain current.
However, it should be noted that the actual issue of installment is not regulated, as well as there is no regulation on the effect of the pre-purchase right on its use. This concept has entered our practice with the case law of the Supreme Court. According to the definition made by the Supreme Court in its decisions on the issue, the actual decimation is the case when the real estate to which the share subject to the legal right of pre-purchase is related is divided among the stakeholders specifically and each stakeholder uses a certain part.
As for the teaching, the actual state of distribution in shared ownership has not been defined independently of the Supreme Court decisions and has only been characterized as one of the uses of the legal right of pre-purchase contrary to the rule of honesty (Köylüoğlu, E.: Preliminary Case (Unpublished Doctoral Dissertation), Ankara 2011, p. 93).
According to the definition made in the judicial case law, three conditions are required for the actual installment to be in question. The first of these is the existence of an immovable property to which the share subject to the legal right of pre-purchase is related. Secondly, this immovable property is decoupled among the stakeholders among themselves. Finally, the third is that each stakeholder uses a certain part. In case of any actual legal taksim does not have a provision that the right to pre are not available, although use of the immovable or the actual formed using a format determined by an agreement between all stakeholders, and stakeholders in the formation of a joint independent record long this situation if adopted literally, protection, 2nd TMC to find the definition in the article is a requirement of the rule of honesty. Because Article 2 of the TMK obliges everyone to follow the rules of honesty when exercising their rights and performing their debts, and as a sanction for non-compliance, it is stated that the abuse of the right will not be protected by the legal order. As is known, in all cases where the right is clearly abused, there is also a violation of the rule of honesty. The legal basis of the actual installment is also this article of the TMK (Tunaboylu, M.: Preliminary (Shuf ‘a) Cases, 4. b., Ankara 2008, p.440).
In the concrete case, the sketch attached to the expert report dated 04.05.2012, which was deconstructed on 12.04.2012 at the scene of the discovery, stated that the section marked with (A) is used by Shefika Filagzi, the section marked with (B) is Orhan Işık, the section marked with (C) is used by the plaintiff, the section marked with (D) is Saide Filagzi, and the remaining part is an empty plot. As can be seen from the sketch attached to the expert report, there is no section on the immovable property specific to the share purchased by the defendant. In that case, it is impossible to mention the existence of a de facto installment plan in real estate. Therefore, the plaintiff’s right to pre-purchase should be exercised according to the rules of honesty (TMK m.2) it should be accepted that it will not create an outlier.
As a result, it is necessary to comply with the decision of the Local Court to overturn the Special Chamber adopted by the General Assembly of the Law, while resisting the previous decision is contrary to the procedure and law.
Therefore, the decision to resist must be overturned.
CONCLUSION: It was decided unanimously on 28.02.2018 that the decision of the plaintiff bank deputy to resist the acceptance of appeals would be OVERTURNED for the reasons shown in the Special Department decision to overturn, if requested, the advance fee of the appeal would be returned to the depositor, within 15 days of the notification of the decision, the way to correct the decision would be open, on 28.02.2018.
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