WHAT IS A FIDUCIARY TRANSACTION?
A fiduciary transaction is defined as a contract in which the believer transfers a right or something within the scope of his assets to the believer for a certain period or purpose in order to constitute security for a debt or to be managed, and the believer undertakes to use it according to the believer’s orders and instructions and to transfer the right back to the believer when the purpose is realised or the period expires.
“… Fiduciary transactions are transactions that involve the transfer of a thing or right within the scope of the assets of the believer to the believer in order to create collateral and to be managed, and the believer to use the thing subject to the belief in accordance with the conditions in the belief agreement, and to return it to the believer in the specified manner when the purpose is realised…” Y. 14TH HD. 7.01.2014 T. 2013/3009 E. 2014/249 K.
WHAT ARE THE CONDITIONS FOR A FIDUCIARY TRANSACTION?
To examine the conditions for filing a lawsuit due to a fictitious transaction
There must be a belief agreement.
The belief agreement must constitute a legal reason.
There must be a gainful transaction.
As a rule, all transferable rights can be subject to a fiduciary transaction. It is not possible to transfer personal rights, which are strictly attached to the person, and rights arising from family and inheritance law through a fiduciary transaction.
Assignment can be made for collateral or for the collection of receivables.
HOW CAN A FIDUCIARY TRANSACTION BE PROVED?
There is a case law unification decision of the Court of Cassation on this issue. If it is necessary to examine a decision based on this decision;
14th Civil Chamber of the Court of Cassation, Esas: 2017/ 1444, Decision: 2017 / 9506, Decision Date: 19.12.2017:
“…fiduciary transactions are transactions in which the believer transfers a thing or right within the scope of its assets to the believer in order to create collateral or to be managed, and the believer uses the thing subject to belief in accordance with the conditions in the belief agreement, and returns it to the believer in the specified manner when the purpose is realised. With a fiduciary transaction, the believer transfers a property or a right to a receivable to the believer through an accretive transaction, but also puts the believer under certain obligations through an obligatory contract. The parties to a fiduciary transaction are the believer and the believer. A person who transfers a right or an object to a trusted person is called a “believer”. The person who directly or indirectly uses the transferred right or object for his/her own benefit as a right belonging to him/her is called the “believer”.
The right or object that the believer gives to the believer is characterised as “the thing subject to belief”. In a fiduciary transaction, the parties to the accretive transaction are the same as the parties to the agreement giving rise to an obligation. In a fiduciary transaction, the believer is obliged to comply with the agreed conditions while exercising his right, and to transfer the right or object back to the believer (or to the third party indicated by him) when the purpose is realised or the period expires. A fiduciary transaction is a contract that gives the person who made the transfer, i.e. the believer, the right to demand the return of the transfer when certain conditions are fulfilled. If this obligation is not fulfilled, it may be requested to be fulfilled by judgement through litigation. Pursuant to the Supreme Court of Appeal Unification of Jurisprudence Decision dated 05.02.1947 and numbered 20/6, the belief contract can only be proved by written evidence. This written evidence must be a document brought by the parties and bearing their signatures.
Even if there is no written evidence of the described nature, if there is a document that is not sufficient to prove the entire dispute between the parties, but there is a document in the nature of “beginning of evidence” (such as a deed or letter written by hand but not signed by the party to be believed, a document written by typewriter or computer but bearing the initials of the party to be believed, a document with fingerprints or sealed documents that have not been duly approved), the belief contract can be proved by any evidence, including “witnesses”, in accordance with Article 202 of the CCP No. 6100. If there is no written evidence or “preliminary evidence”, it is also possible to prove the belief contract by conclusive evidence such as confession (Art. 188 of the CCP) and oath (Art. 225 et seq. of the CCP). If the plaintiff relies on oath evidence, the court should remind the plaintiff of this right.
As for the concrete case in the light of these principles; the plaintiff has not been able to prove his claims with written evidence bearing the signatures of the title deed owner … or with the beginning of the evidence obtained by the defendant. However, since the plaintiff clearly relied on the oath evidence in the list of evidence, the plaintiff should be reminded of his right to offer oath and a decision should be made according to the result by taking action in accordance with Articles 225 and following articles of the CCP, but it was not deemed correct to make a decision in writing without fulfilling this issue, and for this reason, the judgement had to be reversed.”
WHAT IS THE CASE FOR CANCELLATION AND REGISTRATION OF TITLE DEED DUE TO FAITHFUL ACT?
Title deed cancellation and registration lawsuits are lawsuits related to the immovable property. As a rule, immovable property is acquired through registration and according to Article 1024/2 of the Turkish Civil Code No. 4721, a registration based on a non-binding legal transaction or lacking a legal reason is void.
The subject of the action for cancellation and registration of title deeds is to make the registration and registration transactions in the land registry that are made in violation of the procedure and law or that no longer reflect the real situation in accordance with the reality. Therefore, the action for cancellation and registration of title deeds directly concerns the right of ownership of immovable property.
The aim of the action for cancellation and registration of the title deed is to cancel the registration in the title deed and to register the immovable in the name of the owner, who is the real rightful owner of the immovable. Thus, the court will determine the corrupt registration nature of the registration in the land registry and the concrete case justice will be provided by establishing a connection between the legal situation and the actual situation.
The parties may vary according to the type of deed cancellation and registration case.
WHO CAN FILE A DEED CANCELLATION AND REGISTRATION CASE?
The deed cancellation and registration lawsuit can be filed by anyone who has an interest in the cancellation of the deed record that has been created in violation of procedure and law.
AGAINST WHOM CAN A DEED CANCELLATION AND REGISTRATION LAWSUIT BE FILED?
The deed cancellation and registration lawsuit must be filed against the person who appears as the owner in terms of that immovable in the title deed due to a corrupt registration. If this lawsuit is filed against someone other than the person who appears as the owner in the title deed, the lawsuit will be rejected due to the lack of party status.
In addition, if the immovable property is registered in the title deed in the name of more than one person as joint ownership, the lawsuit must be filed against all of the owners who have joint ownership together. If a deed cancellation and registration lawsuit is to be filed for an immovable registered in the name of a deceased person, the lawsuit must be filed against the heirs of the deceased, i.e. the muris.
HOW LONG DOES A JUDICIAL PROCEEDING TAKE?
The Ministry of Justice has set target periods in the judiciary. These periods are determined in accordance with the subject and nature of the case, and the Appeal and Supreme Court stages are not considered within this period. When practical applications are considered;
Petitions must be full and complete
Notification periods
Discovery and expert examination
Processes such as hearing witnesses, if any, vary according to the content of the case.
Looking at the general averages, it can be said that on average, faithful transaction cases are concluded between 12 and 18 months. When the stages of Appeal and Court of Cassation, which start after the first instance court decision, are taken into account, it is possible for a case to extend up to 3-4 years.
However, the finalisation of a case within the shortest time is directly related to the close follow-up of the case. A good file follow-up prevents unnecessary prolongation of the case.
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