REPUBLIC OF TÜRKİYE COURT OF CASSATION General Assembly of Civil Chambers
Basis No: 2017/14-1761
Decision No: 2018/407
Date: 28.02.2018
TITLE DEED CANCELLATION AND REGISTRATION LAWSUIT – PRE-EMPTIVE RIGHT (RIGHT OF FIRST REFUSAL) – WHETHER THE PAST USAGE BY SHAREHOLDERS CONSTITUTES DE FACTO PARTITION – WHETHER THE EXERCISE OF THE PRE-EMPTIVE RIGHT VIOLATES THE RULE OF HONESTY – REVERSAL OF THE DECISION TO RESIST
SUMMARY: The lawsuit concerns a request for title deed cancellation and registration based on the statutory pre-emptive right (yasal ön alım hakkı). In the concrete case, the expert report sketch dated 04.05.2012, prepared following the on-site discovery on 12.04.2012, indicated that: section (A) was used by Ş.F., section (B) by O.I., section (C) by the plaintiff, and section (D) by S.F., while the remaining part was vacant land. As understood from the sketch attached to the expert report, there is no specific section allocated to the share purchased by the defendant on the immovable property. Therefore, it is impossible to speak of the existence of a de facto partition (fiili taksim) on the property. Consequently, it must be accepted that the plaintiff’s exercise of the pre-emptive right does not constitute a violation of the rules of honesty. Under these circumstances, while the Local Court should have complied with the Special Chamber’s reversal decision adopted by the General Assembly of Civil Chambers, resisting the previous decision was contrary to procedure and the law. Thus, the decision to resist must be reversed.
(Turkish Civil Code [TCC] Art. 2, 732) (Decision of the Unification of Jurisprudence [IBK] dated 14.02.1951, Basis 1949/17, Decision 1951/1)
J U D G M E N T
Legal Framework: Statutory pre-emptive right is an accessory (property-bound) and formative (inşai) right exercised through a lawsuit, which grants other shareholders the authority to primarily purchase a share under the same conditions if a shareholder sells their share in a property subject to shared ownership to a third party.
Pursuant to Article 732 of the TCC: “In shared ownership, if a shareholder sells their share in the immovable property entirely or partially to a third party, other shareholders may exercise their pre-emptive right.” Through this right, the legislator aims to prevent the fragmentation of rights held by individuals in ownership unity and to prevent third parties from entering the partnership.
The Concept of De Facto Partition (Fiili Taksim): Although not regulated by statute, this concept entered practice through Court of Cassation precedents. It refers to the situation where the shareholders of a property subject to a statutory pre-emptive right specifically partition the property among themselves and each shareholder uses a specific part.
Pursuant to Article 2 of the TCC, everyone must comply with the rules of honesty while exercising their rights and performing their obligations. If the usage pattern of the property has been determined by an agreement reached among all shareholders, or if a factual usage pattern has emerged and shareholders have adopted this situation for a long time, protecting this independent de facto formation is a requirement of the rule of honesty. In such a case, a plaintiff exercising a pre-emptive right despite the partition would be committing an abuse of right (hakkın kötüye kullanılması).
Evaluation of the Case: In the concrete case, although sections used by some shareholders were identified, the expert report clearly states that the section corresponding to the share purchased by the defendant is vacant land and has not been specifically allocated or used. For a de facto partition to be a valid defense against a pre-emptive right, the share sold to the defendant must also correspond to a specific, partitioned part used by the seller. Since there is no section allocated to the defendant’s share, the de facto partition defense is invalid.
CONCLUSION: For the reasons explained above, it was UNANIMOUSLY DECIDED on 28.02.2018 to REVERSE the decision to resist, as the plaintiff’s pre-emptive right claim must be examined on its merits.