REPUBLIC OF TÜRKİYE COURT OF CASSATION 3rd Civil Chamber
Basis No: 2015/18286
Decision No: 2017/4904
Date: 06.04.2017
COURT OF CASSATION JUDGMENT
COURT: Civil Court of First Instance
Following the trial conducted by the court regarding the pecuniary and non-pecuniary damages lawsuit between the parties; upon the appeal by the plaintiff’s counsel against the judgment rendered for the dismissal of the case; the file and documents therein were examined after the decision to accept the appeal petition was made:
– D E C I S I O N –
The Claim: The plaintiff’s counsel stated that the plaintiff and the defendant (who works in Germany) decided to marry and got engaged. It was alleged that they decided to demolish an old house belonging to the Treasury but possessed by the defendant in Ulupınar village to build a pension. The plaintiff carried out the construction, built bungalows, rooms, and a cafeteria, and incurred significant expenses (approx. 100,000 TL) as the defendant stopped sending funds. Furthermore, the plaintiff faced criminal prosecution and administrative fines because the area was a protected site (SİT alanı). The plaintiff claimed that in 2009, the defendant began harassing him to vacate the premises and initiated eviction proceedings based on a sham lease agreement. The plaintiff requested 20,000 TL in pecuniary and 10,000 TL in non-pecuniary damages.
The Defense: The defendant’s counsel requested the dismissal of the case on the grounds of lack of jurisdiction, the expiration of the one-year statute of limitations pursuant to Article 60 of the Code of Obligations (BK), and the merits of the case.
Local Court Decision: The court ruled that the plaintiff became aware of the unjust enrichment on 23.11.2009 (the date of his response to the warning letter). Since the one-year statute of limitations expired on 23.11.2010, the court dismissed the claims for damages due to the statute of limitations.
The Reversal Reasons: Pursuant to Article 66 of the BK (Art. 82 of the TCO), the statute of limitations for claims based on unjust enrichment is one and, in any case, ten years. According to the settled precedents of the Court of Cassation, if the plaintiff’s possession (zilyetlik) of the real property continues as of the lawsuit date, the statute of limitations does not begin to run. The start date of the statute of limitations is the date on which the plaintiff loses possession of the real property.
The court failed to investigate the status of the plaintiff’s possession. An obligation for restitution cannot be discussed until the assets are actually transferred to the enriched party. Pursuant to Article 128 of the BK (Art. 149 of the TCO), the statute of limitations begins when the debt becomes due and payable (muaccel). If the plaintiff has not been evicted, or if the eviction has not been finalized, the debt is not yet due. Dismissing the case based solely on the date of a warning letter without determining the date of eviction was an erroneous evaluation and required a reversal.
CONCLUSION: For the reasons explained above, it was UNANIMOUSLY DECIDED on 06.04.2017 to REVERSE (BOZULMASINA) the judgment in favor of the plaintiff and to return the advance appeal fee upon request.