General Assembly of the Law 2013/1754 E. , 2015/1235 K.
- THE RIGHT OF PREEMPTION
- REQUEST FOR CANCELLATION AND REGISTRATION OF THE SHARE BASED ON THE PRE-REGISTRATION RIGHT
- THE PLAINTIFF SELLS A SHARE OF HIS SHARE
- THE NEED FOR CONTINUED STAKEHOLDER ENGAGEMENT
- AN ALLEGATION OF VIOLATION OF THE RULE OF DECENCY AND HONESTY
- Article 2 OF THE TURKISH CIVIL CODE (TMK) (4721)
“Text Of Jurisprudence”
At the end of the trial held due to the “preliminary Decriminalization” case between the parties; Xinjiang 4.15.03.2012 day and 2011/127 E, which were issued by the Court of First Instance regarding the rejection of the case.-2012/124 K. upon the request of the deputy plaintiff to examine the decision No. 6 of the Court of Cassation.10.12.2012 days and 8711/2012 E of the Legal Department. 2012/16311 K. with Ref No.;
(…The case concerns the request for cancellation and registration of the share sold to the defendant due to the right of pre-emption. The court decided to dismiss the case filed in bad faith, and the verdict was appealed by the deputy plaintiff.
The plaintiff’s deputy is E, in which the plaintiff is a stakeholder.. district Y.. dark . share 41039/4031259 in parcel No. S. G. by defendant R.. E..he requested that the share sold to ’a was sold for a price of TL 10,000 and that it be registered on behalf of the plaintiff with the cancellation of the share sold using the right of legal representation. The defendant’s attorney stated that the share subject to litigation was sold for a price of 103.000-TL, including expenses, A portion of 100.000-TL of this price. I. D.he defended the rejection of the case by stating that the Akbank branch account was paid, part of the 3,000 TL was sent to the proxy’s account, the sale price was not 10,000 TL, the plaintiff and the person selling were relatives, the plaintiff had recently sold some of his share to third parties, so the plaintiff’s lawsuit was not in accordance with the goodwill rule in accordance with Article 2 of the TMK, the plaintiff’s lawsuit was filed. The court, due to the sale of a share when opening a case with the plaintiff on the other hand, moving a portion of their shares on the same day the premises sold to third parties who are not stakeholders, among stakeholders to prevent the entry of foreign persons is the purpose of the preemption case, TMC 2/2 pursuant to the rights of the plaintiff clearly misused, maintains the status of the rule of law, whether by violating the rules of honesty and good faith in exercising the right of the plaintiff, the case is dismissed.
The pre-sale right is a right that gives other stakeholders the right to purchase that share first if the share is sold 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 share is sold to a third party.
Since the pre-sale right is an innovation-generating right arising from a valid sale in a real sense, each share in real estate subject to shared ownership can be the subject of a pre-sale case. Ankara Province, where the plaintiff is a stakeholder, E.. district Y.. dark . 41039/4031259 share Water in parcel No. G. by defendant R.. E..it was sold for a price of 10,000-TL. The plaintiff filed a preliminary claim on 26.08.2011 due to the sale of this share in the immovable property and requested the registration of the sold share on his behalf. Plaintiff S.. Y..although some of the shares registered in its name on the same day have been transferred by selling their shares to third parties who are not stakeholders, this does not indicate that the plaintiff has bad intentions. There is no irregularity in the plaintiff’s exercise of the right of pre-emption since the defendant has been a stakeholder in the real estate since before and continues to be a stakeholder at the time of the lawsuit. In this case, the court should examine the merits of the work and make a decision according to the result, while the decision had to be overturned because it was not considered correct to establish a provision in writing…)
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.
APPELLANT: Acting plaintiff
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 share sold to the defendant based on the right of pre-emption and the request for its registration on behalf of the plaintiff.
The deputy plaintiff is the province of Ankara, where the defendant is the plaintiff’s stakeholder..district Y.. the village acquired the 41039/4031250 share in the real estate registered in 517 parcels on 23/08/2011 at a price of TL 10,000.00.. G.. stating that he bought it from a named stakeholder, he asked that the cancellation of the deed of foundation on behalf of the defendant and its registration be decided on behalf of the plaintiff
The defendant’s deputy defended the rejection of the case.
The court’s decision to dismiss the case was overturned by the Special Department on the above-mentioned grounds; the Local Court resisted the previous decision.
The dispute that comes before the General Assembly of the Law through resistance is collected at the point of whether it is contrary to the rules of honesty for the plaintiff who wants to use his right to pre-emption to sell a share of his share, whether this situation prevents him from exercising his right to pre-emption.
The defendant’s deputy stated that the 517 parcels that were sued with the petition of response to the appeal dated 08.07.2014 constituted 48381 islands with zoning, 48417 islands with 1 parcel and 2 parcels with new parcels, the plaintiff has no share in the new parcels, so there is no issue of the right of presumption left, and submitted land registry records in this regard.
As is known, the right to suf (pre-sale) exists as long as the joint ownership relationship continues. It is imperative that the plaintiff maintains his or her stakeholder during the continuation of the trial. If the plaintiff loses his share in any way after the opening of the case, it is also not possible to exercise his right to suf, since the plaintiff’s stakeholder cannot be mentioned.
In a concrete dispute, the work to be done by the local court should be to examine the land registry records put forward by the defendant’s attorney in his response to the plaintiff’s decision to resist by summoning them with all their bases, investigate the stakeholder status of the parties and make a decision according to the result.
The decision to resist must be overturned on these different grounds described.
S O N U Ç: It was decided unanimously on 17.04.2015 that the decision to resist would be OVERTURNED due to the different grounds and reasons shown above, and that the advance fee for the appeal would be returned to the depositor if requested, with the acceptance of the plaintiff’s deputy’s appeals.
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