General Assembly of the Law 2014/324 E. , 2015/2787 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the “pre-trial” case; Istanbul An Decolu 21. 10.04.2012 day and 2010/167 E, which were issued by the Court of First Instance on the refusal of the case., 2012/170 K. upon request of the deputy plaintiff and the deputy principal respondent to examine the decision No. 6 of the Supreme Court. The day of 20.11.2012 of the Legal Department and the day of 2012/11962 E., 2012/15095 K. with Ref No.;
(…The case is related to the cancellation of the share subject to the pre-trial right and its registration on behalf of the plaintiff. After the court decided to dismiss the case, the decision was appealed by the deputy plaintiff and the deputy respondent.
The deputy plaintiff, FC yapı Sanayi ve dış Ticaret Ltd., one of the stakeholders of parcel No. 21, where his client is a stakeholder, in the lawsuit petition. Şti.on 30.3.2010, he sold his share to the defendant for a price of 9,000 TL, the plaintiff was not notified of the sale of the share made, 8.4 of the sale..stating that the plaintiff, who was informed in 2010, wants to exercise his right to pre-trial, he requested the cancellation of the share registered on behalf of the defendant and its registration on behalf of his client. Counsel for the defendant, the case of unfair and unfounded opened after the transition to joint ownership and transport properties of stakeholders to evaluate real estate in the form of construction by the contractor against the floor they are aiming for this purpose, initially based on an agreement with a contractor Construction Group Ltd GMO beautiful and Solomon moved premises a team after the start of operations, the contractor’s actions to annul the contract between them and this time they did because of their lack of Finance in the company of the defendant Dia-FC Timur structure and the Partnership agreed with ordinary real estate, however, he stated that the plaintiff and some stakeholders did not participate in this agreement, meanwhile, in terms of establishing the ordinary partnership of contractor companies, some shares had to be Decoupled, these assurances could only be provided by selling the deed, the share subject to litigation was transferred to the defendant in this way, the plaintiff had no right to pre-empt due to the fact that this transfer was not a real sale, and he argued that the case was filed in bad faith should be dismissed.
The right of pre-sale is a right that gives other stakeholders the authority to purchase this sold share primarily if a stakeholder partially or completely sells his/her 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 shared ownership relationship is established and becomes available when the sale is made.
The right of pre-emption is used against the buyer only by filing a lawsuit. 733/3 of the Turkish Civil Code. an obligation has been imposed on the buyer or seller to notify other stakeholders of the sale made in accordance with the provision of the article through a notary public.
The right to pre-sale falls on three months after the date of notification of the sale to the right holder and, in any case, two years after the sale. This period is an unfair period and should be considered by the court itself.
As for our case; The plaintiff is FC yapı Sanayi ve dış Ticaret Ltd, one of the stakeholders of parcel No. 21, to which the share subject to litigation is related. Şti.he claimed that he sold his share to the defendant on 30.3.2010 and that he was notified of the sale on 8.4.2010 and requested that the right of pre-trial be recognized with this lawsuit he filed on 9.4.2010. The defendant, on the other hand, argues that the guarantee made in the deed is not a real sale, but is transferred as a requirement of construction contracts and ordinary partnership between contractor companies in exchange for Decking. According to the documents found in the file, initially on 6.8.1998, some stakeholders, including the plaintiff, arranged a construction contract with contractor Suleyman Güzel for the promise of real estate sales and Decking, and another part of the stakeholders signed a contract with GMO Yapı Grup Ltd. On the same issue, on 2.3.2006, contractor Suleyman Güzel transferred the rights and obligations arising from the contract to GMO Yapı Grup Ltd. Sti. Moving premises, in order to begin construction on the demolition of the structure, such as type correction unable to perform the Act required to be performed on various processes of the contractor on the construction contract is dissolved 14.7.2009 land owners, and are subsequently out of the case on 15.7.2009 Ltd FC in return for the promise of the construction building industry with the sales contract is entered into and the Times. However, eight stakeholders, including Dec plaintiff, did not participate in this agreement. The company undertaking the construction is also an ordinary company with the defendant company and Timur Real Estate Partnership. As 1/3 of the shares transferred to the contractor will be transferred to other partner companies in accordance with the protocol dated 8.3.2010 between them, FC Yapı Sanayi Ltd Şti sold the share to the respondent company. Dec. This assignment was carried out in the form of a share sale in the deed. And finally, the plaintiff in the absence of prior developments in relation to immovable sales in return for the promise of the construction contract and the times, according to the defendant, though, against the floor of the construction contract with contractor companies with the capacity of stakeholders that are outside the partnership agreement between the plaintiff’s title made by the sale of a share in the assignment of the right of legal action against an irregularity in the use of there is no preemption. In this case, the work to be done by the court consists of examining the merits of the dispute and making a decision according to its conclusion, and it is not correct to establish a provision in writing without considering this aspect.
The provision must therefore be overturned…)
the grounds were overturned and the file was returned to its place, but at the end of the retrial, the court resisted the previous decision.
THE APPELLANT : The acting plaintiff and the acting respondent
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 papers in the file were read, the requirement was discussed:
The case concerns the cancellation of the title deed based on the right of pre-registration and the request for registration.
The plaintiff’s deputy stated that his client has a 731/11200 share in the immovable property numbered 838 ada, 21 parcel, and one of the stakeholders of the same immovable property is FC Yapı Sanayi ve Dış Ticaret Ltd. Şti’s 595/392000 share was sold to the defendant on 30/03/2010 for a price of 9.000 TL and transferred from the deed, the sale was not notified to him, his client learned about the sale on 08/04/2010, his client was ready to pay the sale price and buyer’s expenses in exchange for the right to pre-sale, the defendant’s last share was canceled and decided to be registered on behalf of his client by canceling the sale on behalf of the defendant he has requested and sued.
The acting principal respondent stated that his clients also own the real estate subject to the lawsuit, that there is no official notification to their clients about the sale subject to the pre-trial lawsuit made through a notary public, that the sale process subject to the pre-trial lawsuit is confidential for a multiple, but in case the court considers that the right to pre-trial has arisen, their clients should participate in the case as a principal participant, he requested that if a preliminary decision is made with the acceptance of his clients’ requests to participate in the case as a primary participant, a registration decision should be made at the rate of his clients’ shares.
The defendant’s representative, the subject matter of the client in the case of immovable property owners Consortium (Dia Finance-FC structure-real estate Timur Ordinary Partnership) signed the contract for construction with the floor, the floor of the construction contract for the transfer of shares in the case was due to that, this era is not the real purpose of sales, for these reasons, plaintiff’s being able to use its right of lien may not be possible for the use of the right of preemption in the middle there has to be a real sale, stating that the case be given to the decision of the denial of the requested.
Court, right of preemption can be used in the actual sales floor for sale construction contract construction sales during the periods occurs with the absence of a true my load because this way, in times, the question of the right of preemption, the plaintiff was not a party to the contract because the contract is in a position to exercise a right of preemption have been made with as if all the owners of where it is not valid and enforceable contract, the transferor of the rights owners are entitled to their shares back with the termination of this agreement, due to the fact that these agreements are also known to the plaintiff, he decided to dismiss the case on the grounds that the exercise of the right of preemption would not be incompatible with good faith.
The decision, which was appealed by the deputy plaintiff and the deputy principal respondent, was overturned by the Special Department on the grounds written above. A decision was made by the Local Court to resist on previous grounds.
The decision to resist was appealed by the acting plaintiff and the acting principal respondent.
I-In the examination of appeals of the deputy of the main respondent;
During the meeting held at the General Assembly of the Law, before proceeding to the study of the merits of the work, the issues of whether it is possible for the principal respondent’s attorney to appeal the decision by participating; according to the conclusion to be reached here, whether the principal respondent’s attorney is within the time limit of the appeal request were considered as a preliminary problem.
It should be noted right away that Article 30 of Law No. 6217. article 433 /II-2 of the Code of Civil Procedure No. 1086 (HUMK), which is being applied with the reference to the “Provisional article 3” added to the Code of Civil Procedure No. 6100 by Article 433/II-2 of the Code of Civil Procedure (HUMK). according to the article appeals against as) party (answer), the provision at the time didn’t appeal (even though the date of notification of Appeal) in the petition within ten days of his answer, in relation to the provision by declaring objections can be found in the appeal request; that is, they may appeal the judgment (m. 433, II c. 2). This is called an appeal by the way of joining. Accordingly, in accordance with Article 433/II-2 of the aforementioned Law. the scope of the concept of “counterparty” mentioned in the article is “defendant” if the plaintiff requests an appeal; if the defendant requests an appeal, there is no doubt that the “plaintiff” will enter.
On the other hand, the Law No. 432 of the HUMK No. 1086. article 1. the period of appeal of decisions to be made by the Court of First Instance in accordance with paragraph 15 is 15 days from the date of notification.
In the concrete case, the decision of the local court to resist was notified to the deputy of the main participants on 16.01.2014, and the legal 15-day period expired on 31.01.2014. After that, an appeal request was submitted by the plaintiff’s attorney, and the victims’ attorney filed a petition requesting an appeal by participating on 06.02.2014. In this case, it is not possible for the participants in the case to be within the scope of the concept of “counterparty” specified in HMUK 433/II-2 as the principal participant in addition to the plaintiff himself.
As a result, it was decided by a majority vote that the appeal request should be rejected, since it was not possible for the deputy of the main respondent to request an appeal by joining the petition filed after the legal appeal period.
II-In the examination of appeals of the plaintiff’s deputy;
The dispute between the local court and the Private Department is being collected at the point of whether the transfer to the defendant contractor in accordance with the construction contract in exchange for the transfer of a share of the land plot can be considered a real sale, according to the conclusion to be reached here; Dec it is possible for the plaintiff to exercise his right of pre-Dection.
In resolving the dispute, first of all, it is necessary to clarify the nature of the right of pre-emption.
As it is known, since there is a situation of joint management and use between stakeholders in shared ownership, it is important for stakeholders to know and get to know each other Dec This requirement among stakeholders as to prevent the entry of a foreign person or immovable breaking it into smaller pieces in order to avoid as much as possible in the hands of the shareholder of the stock in real estate joint collection to shareholders in order to ensure statutory preemption by limiting the right to assign the right has been granted.
The right of pre-emption is one of the installments of immovable property ownership arising from the law and it has been stated that it is a right that gives rise to innovations in the Decision to Combine Case Law No. 1/6 of 26.12.1951 days.
On the other hand the decision to merge 20.06.1951 day No. 5/13 case law in the legal nature of the right of pre, “of pre-emption, on sale of shares will be sold to a third party mefsu and to be used within one month from ittila to be used under certain conditions, such as innovation-provoking right, the chief in the path at the right of use of the unilateral declaration allows the customer to be created with a new legal situation. By exercising this right, the chief becomes the successor of the customer without having to make a new contract,”it is explained.
732 of the Turkish Civil Code No. 4721 entitled “Legal Right to Pre-Emption-Holder of the Right to Pre-emption”. the article provides for the provision ”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”.
Although no clear definition of the right to pre-emption has been made in the mentioned regulation, the right to pre-emption has been provided for only for the sales contracts by limiting this limitation while limiting the right of attorney of the stakeholder by considering that the basic principle is freedom of ownership and savings authority.
The contents of this issue in case law described above is adopted and the decision to merge 20.06.1951 No. 5/13 day and the grounds for the decision, the statutory right of preemption of the transport properties of immovable property takyit shareholder of the shares in that stock is sold to a third party if the other person a person what is the cost to the customer if within a certain period of time and gives you the authority to buy with that amount are the same rights that is stated.
As it is clear, in order to be able to speak about the legal pre-emption right, the share in a real estate subject to the provisions of shared ownership must be sold to a third party; the subject of the pre-emption right is the sale of shares.
There will be no legal right of preemption in the case of shares that are not the subject of a real sale and are not for sale. Since the pre-sale right must be used within the terms of the sale of the share, there is no way for those who have acquired the share in exchange for other than money to take it as a basis by fulfilling the same conditions. For example, if the security is in the form of a grant, the right of pre-emption will not be used because the grant is intended to transfer the property to the ownership of a third party for free. Because in the pre-sale, the amount that the person using the pre-sale right is obliged to pay to the purchaser of the share is not available in the grant, it is not possible for the person using the pre-sale right to request the transfer of the share to him without paying any price.
At this stage, it is useful to make the following explanations and determinations regarding the works (construction construction for land share) contracts regulated in the Turkish Code of Obligations Dec 6098 (TBK):
As a rule, 470 of the Turkish Code of Obligations No. 6098. (see Law on Obligations No. 818 (BK) 355.) the building contract identified in the contract for construction, which is a type of land provision for the transfer of shares, mutual, both of which are contracts that acts debt loads. The owner of the land plot, one of the parties to the contract, is obliged to hand over his land plot to the contractor in accordance with the contract, and when the contractor performs his Decisiveness against him, he is obliged to transfer to him the title deed of the independent sections left to the contractor in exchange for his performance. It seems that in these contracts, the fee (price) is paid by the owner of the land plot in Decimals.
The other party to the contract, the contractor’s act, is to Deconstruct the building and deliver it to the land owner under the conditions agreed in the contract. The contractor who signs such a contract acquires a personal right to the owner of the land plot when he performs his actions arising from the construction contract and may request the transfer of the title deed of the independent sections Dec Dec to him in accordance with the contract from the owner of the land plot. In accordance with Articles 183 and Dec of the TCC (162 et seq. of the TCC), he may also transfer and assign this personal right to third parties, provided that it is in writing, without the need to obtain the consent and approval of the landowner.
It should be noted immediately that if the immovable property on which the building will be built is subject to shared ownership, it is subject to Article 692 of the Turkish Civil Code No. 4721 (TMK). according to its article, all owners must participate in the contract. Otherwise, since the contract does not have the ability to perform, the parties have the right to ask for back what they gave each other due to the invalid contract, based on the provisions of unjustified enrichment.
The subject of the construction contract in exchange for a share of the Dec is the construction of buildings to be made on the Dec where the owner of the Dec is the owner. Construction refers to the work of a material nature.
The first element in the construction contracts in return for a share of the plot, “the contractor’s construction (building) is under a debt of bringing about”. Because in these contracts, the contractor is obliged to create a building (construction) by providing its finances and using art, skills and labor if necessary. But the subject of construction construction contracts can be as much the construction or modification of an existing building as the construction of a new structure (building), or repair work on the structure.
In general, as in the work contracts, the “price” is one of the elements of the contract in the construction construction contracts in exchange for the land share. Dec. However, as mentioned above, here the owner of the land performs his/her action not by giving the contractor some money as a Deciency in exchange for the construction of the Deciency, but by transferring the agreed share of the land.
In exchange for a share in the land plot, the owner of the land plot may transfer a share to the contractor in various ways in construction construction contracts; sometimes, a floor easement is established by the owner of that land plot for independent parts of the building that will be built on the land plot to be the subject of condominium ownership in the future, (Dec 634 m Dec Dec. 2 / c) the transfer of a certain proportion of the land share corresponding to the independent sections agreed to be given to the contractor in the contract is committed and the transfer is Dec to the contractor as agreed in the contract. Sometimes, before the Decking easement is established on the land, the land deed is transferred to the contractor with the whole, in the future, when the construction is completed, a Decking easement is established, and a list of floor easements is made together according to the share in the contract.
Sometimes, according to the stage of construction in the contract, a gradual transfer of title deeds is decided and the transfer is made accordingly by the Dec of the land plot.
The most common form of transfer in practice is the transfer made in the form of the landowner promising the sale of Dec Dec of the land that must be transferred, and the contractor undertakes the construction of the construction. Accordingly, the contractor will perform its performance in accordance with the contract, and in return, it may request the owner of the land to register the share in the name of the Decommissioned share.
In accordance with the construction contract in return for a share of the plot of land by the owner to the contractor or third party or parties to any immovable property or immovable share with his request assignment of the construction given in order to provide finance for the construction of an “advance” has been regarded as; was charged with acts against the contractor that installed the “personal rights” and however acquired, you can obtain the personal rights may assign to third parties. If the contractor performs all his actions and the contract is concluded with the performance, his personal right turns into a right in kind. As a matter of fact, the third parties who have acquired a share from the contractor due to the construction construction contract in exchange for a share of the land plot are Dec 1024 of the Turkish Civil Code. article 1023 of the same Law. they cannot benefit from the provision of the article. Until the delivery of the construction in a legal sense, the landowner has the right to Declaim the shares he gave as an advance. Legal delivery is considered to have occurred if the construction has been completed in accordance with the legal legislation (obtaining a residence permit).
At this stage, it is necessary to focus on Dec issue of whether the transfer of shares to the contractor in accordance with the construction construction contracts in exchange for the transfer of a share of the land plot can be considered a real sale.
As mentioned above, there will be no legal right of pre-emption for shares that are not subject to an actual sale and are not for sale. Since the pre-sale right must be used within the terms of the sale of the share, there is no way for those who have acquired the share in exchange for other than money to take it as a basis by fulfilling the same conditions. In return for a share of the contract for construction of the plot if the land owner as compensation to the contractor for the construction of the construction instead of a sum of money, to transfer his share in the plot and in order to provide finance for the construction of the construction of the transfer to the contractor issued an “advance” that exists in nature and if the contractor fails to comply with the act, the land-owners of the share of this type than you can always ask for a refund in the assignment of the right of preemption is not possible to use. Because in the preliminary Dec, the price that the person exercising the right to pre-let is obliged to pay to the purchaser of the share, that is, some money, is not available in the construction contract in exchange for the transfer of the land share, and the cost of the share is paid by creating works. It is not possible for the user of the pre-registration right to request the transfer of the share to him without paying any price, nor is it possible for the contractor to do the building Dec the conditions agreed in the contract in exchange for the share and deliver it to the land owner.
In the concrete case, the plaintiff is FC yapı Sanayi ve Dış Ticaret Ltd, one of the stakeholders of the immovable property numbered 838 ada 21 parcel, which is related to the share being sued. Şti.he claimed that he sold his share of the to the defendant on 30.3.2010 and that he was informed of the sale on 08.04.2010 and requested that the right of pre-sale be granted. The defendant, Dec Dec the other hand, argued that the guarantee made in the deed was not a real sale, but was transferred as a requirement of construction contracts and ordinary partnership between contractor companies in exchange for the transfer of a share of the land.
From the documents in the File History 06.08.1998 of stakeholders, including the plaintiff in a part of the contractor in return for the promise of Solomon’s beautiful and real estate sales organized by The Times and the construction contract, construction contract with other stakeholders in relation to immovable part of the same Group Ltd GMO, then it is beautiful on the rights and obligations of the contractor arising from the contract Solomon GMO 02.03.2006 Construction Group Ltd Sti transferred to, and unable to perform the acts of the contractor, the construction contract is terminated by the owners of the plot on 14.07.2009, later, it is understood that a construction contract was concluded with FC Yapı Sanayi Ltd Şti on 15.07.2009 for the promise of sale and Decking for the non-litigant, and eight stakeholders, including the plaintiff, did not participate in this contract.
On the other hand, FC Yapı Sanayi ve Dış Tic. was established on 19.02.2010 in order to carry out a construction project in the immovable property numbered 838 ada 21 parsel, to carry out construction activities, to make profit by offering the built areas for sale. Ltd. Şti, Dia Finans Danışmanlık Ltd. Şti. and an association agreement has been signed between Timur Real Estate Development Yapı and Yatırım A.Ş. and it is understood that the Decoupling process subject to the lawsuit was carried out in accordance with the protocol dated 08.03.2010, which the ordinary partners Decoupled between them.
From all that has been said, there is no doubt that the Decommissioning transaction subject to the lawsuit was made in accordance with the construction construction contract in exchange for the transfer of a share of the land. In fact, there is no dispute about this between the Private Department and the Local Court. As mentioned above, if the transfer of shares is made due to the construction construction contract, the right of pre-emption will not be used. In this case, since the subject matter of the lawsuit has been made in accordance with the construction construction contract in exchange for the transfer of a share of the Decommissioned land plot and does not constitute a real sale, it is not possible for the plaintiff to exercise his right to pre-purchase. However, in cases of joint ownership on immovable concrete building and construction is to be made subject to the contract between the plaintiff’s eight, including stakeholder participation, not because does not have the ability to perform the contract as invalid due to the contract, the parties they gave it to each other, based on the provisions of unjust enrichment, are always entitled to ask for it back.
On the other hand; TMK.2 and 3 of the. in accordance with the articles, everyone is obliged to comply with the rules of honesty when exercising their rights, and it is impossible not to mention that the plaintiff, who initially signed a construction contract with the previous contractors and knew that the other contracting shareholders did not really intend to sell the real estate and transferred it with the intention of owning a home, had good intentions.
During the General Assembly meetings of law, the members of assignment of the case to be in the nature of a portion of the actual sales of land provision for the transfer of shares is made because of the construction contract that is not to prevent the use of the right of lien, the plaintiff’s bad faith law, the rights arising from the use of the evaluation have been proposed in the opinion that it is not possible; although cogunlukca the above-mentioned reasons for this opinion has not been adopted.
As such, it is in accordance with the procedure and the law to resist the decision of the local court in the previous decision against the Private Apartment Deconstruction on the grounds that, taking into account the considerations described above, the transfers made in accordance with the construction contract in exchange for the transfer of a share of the land are not real sales and the exercise of the right of pre-emption will not be compatible with good faith, as these contracts are also known to the plaintiff.
Therefore, the decision to resist must be upheld.
S O N U U O : 1-Above (I.)the REFUSAL of the appeals of the deputy of the principal respondent for the reason described in paragraph 27.11.2015 at the first meeting held on 27.11.2015 with a plurality of votes,
2-Above (II.)for the reason described in the paragraph, it was decided by a majority vote at the second meeting held on 04.12.2015 that the plaintiff’s attorney’s objections to the appeal should be rejected and the decision UPHELD, and that there is no need to receive fees other than the necessary appeal fee has been received in advance.
27.11.2015 pre-sponsor’s vote
VOTE AGAINST
The plaintiff stakeholder, due to the share sale dated 30.03.2010, filed a claim for cancellation and registration of the title deed against the respondent buyer company based on the legal right of pre-emption. Another part of the stakeholders (62 people) claimed that the sale of shares was based on the construction contract in exchange for a share of the land, not a real sale, first of all they asked for the rejection of the case, and in case of acceptance that it was a real sale, they were also granted the right to pre-registration at the rate of their shares Dec
The defendant in return for a share sale share because it is based on the plot of the construction contract, the right of preemption is based on the actual sales and asked for a dismissal to be used in the court case is dismissed.
After the rejection decision was overturned, the court resisted in its previous decision by stating that the high special chamber should decide on the acceptance of the case.
On the grounds of Decisiveness; the right of pre-emption is a right that can be used in real sales, and the sale of shares made due to the construction contract in exchange for a share of the land is not a real sale,Since the construction contract for the provision of land shares was not signed by all stakeholders, it is invalid, therefore, the case law of the Supreme Court of Law of 23.06.2010 and 2010/6-341 Dec, Decision 2010/346 of the General Assembly of the Supreme Court of Cassation, which the stakeholders who sold shares can get back from the contractor in case of termination of the invalid contract, is of the same nature,
Since it is also known to the plaintiff that the share sale is based on a construction contract in exchange for a share of the land, the plaintiff’s Decency has not been emphasized. This justification was adopted by the esteemed majority of the General Assembly of the Law and the court’s decision on the refusal was upheld.
First of all, it should be noted that there is no way to recognize that the owner of the right to pre-empt is malicious in exercising the right to pre-empt due to a contract that the owner of the right to pre-empt is not a party to and is not the subject of dispute when it is invalid.
Because 692 of the Turkish Civil Code No. 4721.according to the article, it is possible to carry out a saving operation such as construction on a real estate subject to shared ownership only with a decision that all stakeholders will take unanimously. Likewise, Article 14 of the Condominium Ownership Law No. 634.according to the article, in order to establish a floor easement, all stakeholders must apply to the Land Registry Office together. Otherwise, the building cannot be built, a construction permit cannot be obtained. The construction project cannot be approved, the floor easement cannot be established. Despite this, the construction of the construction carried out by some stakeholders can be stopped, its demolition can be carried out, it is desirable to prevent confiscation. In all these cases, the stakeholder who is seeking his right is not considered to be malicious in any way. Essentially, it is also not possible to evaluate the scope of property rights in any other way.
In the light of these explanations, when it comes to a concrete event, the plaintiff is the stakeholder of the real estate subject to shared ownership. A construction contract has been concluded by the Deci-dents other than the plaintiff and his seven friends in exchange for a share of the land plot. The counterparty of the contract, that is, the contractor Dia Finans-FC Yapı-Timur Gayrimenkul is a consortium established in the Ordinary Partnership. The issue of pre-sale rights has been made to FC Yapı Sanayi ve Dış Ticaret A.Ş., which is a member of the consortium, and Dia Finans Danışmanlık Limited, which is a member of the consortium. A preliminary lawsuit has also been filed against this share sale.
As explained in the case law of the Supreme Court; The right of pre-emption is a right that gives other stakeholders the right to purchase this sold share primarily if a stakeholder partially or completely sells his/her share of the real estate to a third party with real estate subject to the provisions of shared ownership. This right arises as soon as the shared ownership relationship is established and becomes available when the sale is made. The basis of this right is Article 732 of the Turkish Civil Code.it is a substance. According to the said 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.”
The plaintiff has exercised this right arising from the law, and other stakeholders have exercised the same right as the principal participant in the lawsuit filed by the plaintiff. If the case is accepted, the victims will be entitled to registration at the rate of their shares, as will the plaintiff.
At this point, it is necessary to focus on whether the sale of the share subject to the pre-sale right is a real or Decommissioned sale due to the fact that it is based on the construction contract for the share of the land, albeit invalid, and whether this will affect the plaintiff’s law.
As it is known, in any contract, mutvazaa may be mentioned for the parties to that contract. That is, only the parties can agree on a contract. The consent of a third party who is not a party to the contract cannot be mentioned and the party cannot be held responsible for its consent.
The plaintiff is not a party to the sale of the shares subject to the pre-sale right. In fact, in pre-sale cases, the defense of the security cannot be heard from the point of view of the plaintiff, who is not a party to the sale. Conversely, in some cases, the plaintiff may assert his/her consent claim. For example, by claiming that the transaction made as a donation in the title deed is actually a sale, a waiver claim can be made, and in case of proof, it can also use the right of pre-emption.
In this respect, it cannot be argued that the sale in our concrete case is an agreement from the point of view of the plaintiff, and therefore it is not a real sale. Moreover, the sale of shares was not carried out by natural persons who are among the Dec Dec Dec of the construction contract in exchange for the land share. It was concluded between two companies that are Dec Dec Decoupled (among the consortium) from the contractors of the contract. Even this situation alone leads to the fact that the sale is considered a real sale from the point of view of the plaintiff.
In this context, there is no room for hesitation that the right of pre-Decommissioning cannot be used in the presence of a construction contract in exchange for a share of the land made by all stakeholders in a way that binds all stakeholders. However, in this case, it is necessary to accept that the sale of shares made to the contractor in accordance with the contract is not a real sale, but an advance transfer of shares. As a result of this, the bad faith of the stakeholder who uses the right to pre-emption is mentioned. In our concrete case, this is not the case.
It should be added that 696 of the Turkish Civil Code is against the plaintiff and his friends.the dismissal case filed on the basis of the article resulted in a rejection, and this decision was finalized by passing the Supreme Court review. In this case, the work that needs to be done is not to bind legal consequences to the invalid contract and to find forced solutions. Stakeholders who cannot be persuaded should be convinced, and if they cannot be persuaded, it should be assessed that the stakeholder elimination case is a legal way.
For these reasons; While the decision of the local court to resist, which does not comply with the procedure and the law, should be overturned, I do not agree with the opinion of the majority regarding its approval.
18.Head of the Legal Department
VOTE AGAINST
A number of land owners, including the plaintiff …, have concluded a construction contract with the contractor Suleiman in 1998. Dec Dec. At a later date, other stakeholders also joined the contractor GMO Yapı Grup Ltd. for the same purpose. Şti. they have a contract with the. Subsequently, the contractor Suleyman, with the consent of the stakeholders, including the plaintiff, has all the rights and powers arising from the contract with GMO Ltd.Şti.’what has he handed over. In this way, all stakeholders have joined the contract; the contractor is GMO Ltd.Şti., due to economic difficulties, it was unable to start construction, and the construction contract was mutually terminated by agreement with the land owners. Dec.
Then, some land owners signed a new construction contract with a new contractor company (Dia Finans-FC Yapı-Timur Gayrimenkul Adi Ortaklığı) without the approval of 8 people, including the plaintiff …, without obtaining a new construction contract. Dec. Plaintiff … and his 7 friends, with the Consent dated 12.09.2007, initially approved the demolition and construction of the building on the real estate subject to litigation, but did not approve the subsequent construction contract, did not transfer their shares to the Dia Finans-FC Yapı-Timur Real Estate Partnership, which is a new contractor, although they gave their consent to the demolition and construction of the building on the real estate subject to the lawsuit. Their applications for the revocation of the building permit were also rejected. In turn, as a result of the trial of the case filed in the case No. 2010/9691 … and the removal of his friends from the stakeholder, it was decided to dismiss the case, and the decision was finalized.
Plaintiff … has used the legal right of preemption in this case against the share sales made by one of the other land owners to the defendant company in order to fulfill the construction contract for Decking.
In order for a share sale in an immovable property to be subject to a pre-sale right, it is necessary that it be a real sale. In order to determine whether a share sale is a real sale, the issue must be evaluated under three separate headings;
A.As for unreal sales, there are no regulations in our laws other than the Turkish Civil Code. m of the Turkish Civil Code. in 733, it was stated that the right of pre-sale cannot be used in sales only by forced increase.
B.In some issues related to unreal sales, the Supreme Court’s Case Law Consolidation Decisions have been issued. For example;
a)It is accepted that share sales to heirs and some other close relatives should be considered as donations. If the stakeholder of a real estate in the state of shared ownership assigns his share to a husband, wife, child or relative, the right of presumption cannot be asserted if it is claimed and proven that this act, which is shown as a sale, is not actually a sale and is a transaction related to the right of inheritance or for a purpose such as a grant, is not a sale. (Decision No. 12/2 of the Supreme Court of Cassation dated 27.03.1957 on the Unification of Case Law)
b) If there is a de facto installment in a real estate such as this, it is stated that it will be contrary to the rule of honesty for the stakeholder who knows this to use the pre-sale hamkk. If the immovable property to which the share subject to the pre-sale claim is related is privately divided among the Dec 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 the title deed of TMK 2. 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 14.2.1951 on the claim of malevolence, it can be put forward at all stages of the case, as well as the court itself must be taken into account.
C.Some other unreal sales have been adopted by the case law of the Supreme Court, and similar examples in the teaching have been accepted as unreal sales.
Unreal sales Prof. Dr. It is explained in an article by Fikret EREN as follows; “… The right to pre-registration cannot be used in the following cases:
-There is essentially no legal right to pre-emption in real estate,
-If the ownership of the cooperation is in the condominium, it is also in the condominium (Floor Mül. K. m. 8) the situation is the same,
-The right of preemption may not be used in cases of forgiveness or trampling that results in a debt of transfer of ownership.
-This is also the case in cases of expropriation and land consolidation.
-For sales made by auction, for sales by forced auction (TMK. m.733/I)39.
-The ownership of the share subject to the pre-sale right is determined by the decision of one judge, another
in cases where it is passed on to a person,
-In mixed contracts where the selling character is not superior and the forgiveness character is outweighed,
-In cases where it is not possible for the counteraction undertaken by a third party to be carried out by the owner of the pre-emption right, the subject of the pre-emption right (share) is placed as capital in a company with contracts for maintenance until the death of the irat during life.
-In case of merger of two companies,
-Even in cases where the real estate subject to shared ownership is transferred as a whole or a certain part of it, the right of pre-emption cannot be asserted if all the stakeholders of the transfer have decided unanimously.
-In the process of establishing a foundation,
-Passing and sharing of inheritance, renunciation of inheritance, etc. in cases where the goals and motives related to inheritance law are outweighed, such as,
-Even if there is a sales agreement that is formed if the stakeholder transfers his share to his children, wife or husband or his wife, in fact, in cases where there are purposes or forgiveness related to inheritance law other than the sale,
-If the real estate subject to shared ownership is Decoupled between the stakeholders and sold to a third party by the stakeholder to whom a part of the used property has been given, a preliminary claim cannot be filed.
-The right of pre-registration cannot be used for real estate not registered in the title deed.
– Usufruct right facility and housing right facility,
-and finally, in relations such as ordinary rent, product rent, which give rise to the debt of using the item
the right of pre-sale cannot be used because there is no question of de-sale.” (Prof. Dr. Fikret EREN, Journal of Gazi University Faculty of Law C. XII, Y. 2008, Tu. 1-2, Pages 114-117.)
The case is related to the right of legal preemption.
This right is a right arising from the law, depending on the property. It arises directly and exclusively in the person of the owner, that is, the stakeholder, in accordance with the law. It is a purely personal matter. In other words, as a rule, every stakeholder who has a share in an immovable property can use the right to pre-sale.
As a rule, stakeholders have the right to sell their shares to any third party they wish. However, if it sells its share, it must act accordingly, taking into account the consequences of other stakeholders exercising their right to pre-emption. So he will suffer the consequences.
Since one of the stakeholders transferred his/her share in the deed to a third person who is not a stakeholder in the case under consideration, the plaintiff exercised his/her legal right of preemption.
The Defendant… Ltd. Şti. the subject of the pre-sale argues that the sale of shares was made for the purpose of arranging a construction contract between the parties for Decking, and it was not a real sale.
Here, it is necessary to evaluate the principles of legal preemption and, first of all, whether the sale of shares to the defendant is a real sale.
Construction contracts must be made with all land owners in exchange for a share of the land made in relation to Dec Decommissioned real estate together. Otherwise, the contract is invalid because its performance is not possible.
Here, the new contractor Consortium should have Deciphered the construction contract by acting as a prudent trader and first of all by arranging a protocol with all the owners of the real estate that it wanted to make a construction contract for in exchange for a share of the land, giving the construction contract comment to the land registry, thus obtaining the approval of all the owners. The right to request the takeover of the shares of the stakeholders who have not signed the contract on the basis of the CCIS regulation issued without the approval of the plaintiff and his friends is an abuse of the right. Therefore, it is necessary to recognize that the sale of shares to the defendant in the case under consideration is a real sale. Title cancellation and registration cases filed on the basis of the right of presumption are subject to completely different rules, and during the trial of these cases, except for the exceptional cases listed above, the issue of whether the plaintiff has good faith cannot be raised in any way, and whether he has good faith cannot be discussed.
6 of the Supreme Court for the reasons described above. E of the Law Department dated 20.11.2012, 2012/11962. 2012/15095 K. since the decision to overturn the number is in place and I think the court’s decision to resist should be overturned, we do not agree with the majority’s decision that the court’s decision should be upheld.
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