WHAT IS THE CASE FOR THE DETERMINATION OF THE OWNERSHIP OF THE ENCUMBRANCE?
In real estate law, the encumbrance is used to refer to the structures such as buildings, facilities, etc. and planted plants such as trees, vineyards, etc. on a land. The lawsuit for the determination of the ownership of the encumbrance is a type of real estate lawsuit filed against all title deed owners who are stakeholders in the immovable property on which the encumbrance is located, except for those who expressly acknowledge that the encumbrance was created by the plaintiff during the proceedings for the elimination of the partnership and the expropriation process.
With the lawsuit for the determination of the ownership of the encumbrance, the plaintiff determines by a court decision that the encumbrance was created by him/her or that the encumbrance belongs to him/her.
It should be especially noted that; if there is no pending action for the elimination of partnership or expropriation process in terms of the encumbrances on the real estate, a lawsuit for the determination of the ownership of the encumbrance cannot be filed.
The person who owns a thing also owns the integral parts of that thing (Article 684/1 of the TCC of 4721). The ownership of land includes the air above it and the layers of land beneath it, to the extent that it is beneficial for its utilisation. Without prejudice to legal limitations, permanent structures, plants and resources are also included in the scope of this ownership (TMK Art. 718). As emphasised in the Unification Decision of the Court of Cassation dated 22.12.1995 and numbered 1/3, in the Property Law, it is necessary to understand the permanent structures and facilities on a land and trees planted in the form of vineyards and gardens. The encumbrance is a personal right (Articles 722, 724, 729 of the Civil Code) and does not confer an independent ownership or a limited real right separate from the ownership of the land. It is not possible to talk about the existence of a separate ownership separate from the supply of the immovable property for the encumbrances that are integral parts such as permanent structures and trees on the immovable property. According to these principles and principles, as a rule, it is not possible to request the determination of the ownership of the construction other than the owner of the immovable property.
The determination lawsuit is one of the unique lawsuits and the judgement to be obtained as a result of the lawsuit is not capable of execution and enforcement. As a natural consequence of this, the application area of these lawsuits is limited. As it is known, in order for the determination actions to be heard, there must be a current legal interest (Article 106/2 of the CCP No. 6100) and the case must not lose its currentity until the case is concluded. Determination actions are the precursor of actions for performance; therefore, in cases where it is possible to file an action for performance, it is accepted that there is no legal interest in filing a determination action. The existence of legal interest is a condition of litigation and may be asserted by the parties at every stage of the proceedings, as well as ex officio by the judge. In the event that it is determined that there is no legal interest, the lawsuit should be dismissed procedurally on the grounds of lack of cause of action (CCP Art. 114/1-h, 115). (Y8HD-K.2020/4720)
HOW ARE THE FEES AND JUDICIAL EXPENSES CALCULATED IN THE CASE OF OWNERSHIP OF THE PROPERTY?
The lawsuit for the determination of the ownership of the construction site is subject to proportional fees. The plaintiff must pay a proportional fee in proportion to the value of the portion corresponding to his/her share from the total value of the property. In practice, the plaintiffs determine a low value as the value of the construction site when filing a lawsuit, and after paying the fee over this value, the fees are completed over the real value of the construction site through the discovery made during the trial.
In terms of trial expenses and attorney’s fees, attorney’s fees should be assessed in accordance with the provisions of the attorney’s fee tariff for the benefit of the plaintiff over the value that is decided to be accepted and charged. Likewise, according to the rate of acceptance and rejection, the judicial expenses incurred by the plaintiff should be decided to be taken from the defendants in proportion to their shares in the land registry (CCP Art. 326).
In the case of determination of the ownership of the construction, the fees and judicial expenses are calculated over the value of the construction, excluding the ground value.
The subject matter of the lawsuit in the actions for the determination of the ownership of the construction site is the value of the construction site corresponding to the share of the defendants (excluding the ground cost); the relative judgement and judgement fee to be judged as a result of the proceedings should be calculated on the basis of this value, and the calculation of the attorney fees to be appreciated in favour of the parties should also be based on the part of this value whose fee is deposited / completed during the proceedings.
Likewise, taking into account the principles explained above, each defendant should be held responsible for the relative decision and judgement fee to be judged as a result of the proceedings and the trial expenses to be calculated in accordance with Article 326/2 of the CCP No. 6100 and the attorney fee to be appreciated for the benefit of the plaintiff, taking into account the shares in the title deed if the immovable property subject to the lawsuit is registered in the title deed in the form of shared ownership, and in the case of joint ownership, the shares of inheritance (Y8HD-K.2017/16686).
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