MAINLY NO: 2017/2265
DECISION NO: 2017/1435
DATE OF DECISION: 22.11.2017
COURT : ….. The Court Of First Instance
IN WHICH CASES THE PURCHASE OF AN APARTMENT WITH AN ‘ORDINARY WRITTEN’ CONTRACT FROM A CONTRACTOR WILL GIVE THE RIGHT OF REGISTRATION – IF THE APARTMENT HAS BEEN DELIVERED TO THE BUYER, WHICH ONE WILL BE GIVEN THE UPPER HAND IF THE CONTRACTOR SELLS THE SAME APARTMENT TO MORE THAN ONE PERSON
At the end of the trial held for the case “cancellation of the title deed and compensation if it is not registered”, which was decoupled between the parties, Fethiye 3. 19.12.2014 day and 2014/319 E. Given by the Court of First Instance on the acceptance of the request for cancellation of the title deed and refusal of the registration request in the main case and the request for collection of compensation in the merged case on the acceptance of the request for cancellation of the title deed and registration and 2014/426 K. the appellate examination of the numbered decision was requested by the plaintiff of the original case … the deputy Supreme Court 14. 18.03.2014 day of the Legal Department 2013/16460 E., 2014/3665 K. by his numbered decision:
“… The actual case is subject to litigation based on the contractor’s representation 2. floor, the cancellation of the title deed registration of the independent section No. 6 and its registration on behalf of the plaintiff are related to the claim for compensation at the second level.
In the combined case, the plaintiff is … based on the representation of the contractor 2. kat has requested the cancellation of the title deed registration of the independent department No. 6 and the registration of its name.
The court decided to reject the cancellation of the title deed and the registration request in the original case, to accept the compensation request, and to accept the combined case.
The decision was appealed by the deputy plaintiff of the original case and the deputy defendant.
The basis of the plaintiff’s request in the actual case is the ordinary written assignment agreement dated 14.10.2005. The plaintiff stated that he made the payments to the defendant contractor through Işbank with the assignment agreement dated 14.10.2005, the receipt documents dated 08.11.2005 and 18.11.2005, and that he owed TL 5,000 in the balance.
He has denied the defendant contractor signature process and the first conveyance, and physics with specialization in the aftermath of the plaintiff dated 22.05.2012 independent report of the Forensic Medicine Institution bolums 14.10.2005 the rest, and the signature on the documents dated 18.11.2005 08.11.2005 …’s hand has been found to be the product of, in a session dated 22.01.2013 real estate …e to sell the transfer of possession, however, the combined sales price of the case the plaintiff was not paid to him since the same immovable …’na sold with a preliminary agreement to sell, he said. Then, from the point of view of the plaintiff … there is a default process that will have consequences and consequences.
The defendant is the owner of the land … dec decisively, the other defendant is the contractor … and the defendant is the owner of the land … Fethiye 3. He argued that the decision to register the real estate on behalf of the contractor was made by the decision of the Court of First Instance dated 24.02.2010 dated 2006/341 – 2010/113 October 24, 2010, therefore the case against them was dismissed.
Indeed; the contractor may transfer the personal right that he will gain by the construction construction contract in exchange for the share of the existing plot with the landowner to a third party by the assignment agreement that he will receive, unless dec dec is prohibited in the contract. Assignment of claim, the creditor with a third party that inherits between can be performed without the need for the consent of the debtor, and the only saving saving operation that is connected to the shape which has the characteristics of a covenant is. M of the Code of Obligations.according to the provision of Article 163, the assignment agreement may be established by a written contract between the assignor and the decoy area. However, the written form required for the assignment of the receivable does not prevent the assignment agreement from being made in an official manner.
The plaintiff of the combined case … also relied on the contract of promise of sale, which he concluded with the defendant … on 23.09.2010. It does not matter that the contract for the assignment of the contractor to … is notarized. Because, as mentioned above, Article 163 of the Code of Obligations. in accordance with the provision of the article, it is sufficient that the assignment be made in writing.
It seems that the contractor has assigned the personal right that he will earn from the owner of the land to both the plaintiff and the plaintiff of the combined case with decoupling agreements.
In practice, it is a common occurrence that the contractor assigns the same independent part to one or more third parties on different dates by assigning the receivable to one or more third parties or by entering into a sales promise agreement, and one or more assignees make a claim on the same independent part. As such, it is also possible for the owner to promise to sell a real estate that he has made the subject of a sales promise agreement to another person later. In such cases, there is a competition of personal rights. As a rule, unless it is invalid or the contract is terminated, the value of the one dated before the competing personal rights is recognized. As emphasized above, it does not matter here whether the sales transaction was made by the contractor to one or more of the third parties in an official form (with a notarized sales promise agreement), to others by a written contract. An important point is the date of the appeal to third parties who have filed a personal claim.
In a concrete case, since the plaintiff … is based on the assignment agreement dated 14.10.2005, and the plaintiff of the combined case … is based on the sales promise agreement dated 23.09.2010 (assignment), the value of the contract that is the basis of the plaintiff …, which has a previous date, should be recognized in the competing personal rights. As such, the plaintiff …’s debt remaining from the sale price was determined and the defendant was transferred to the court teller to be paid to the contractor and together in accordance with the performance rule, the acceptance of the transfer of ownership request in the original case, the rejection of the combined case should be decided, while the rejection of the request in the original case was not considered correct without considering the performance rule together, so the decision had to be overturned.
According to the acceptance, it is understood that it was decided to consider the case as a Consumer Court at the session dated 03.12.2010, although this issue was not mentioned in the reasoned decision title, this issue was addressed because the mistake was based on a material error …”
at the end of the retrial, the court resisted the previous decision by being overturned on grounds and the file was returned to its place.
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:
If the registration is not possible, compensation is requested in the case of the merged case and the cancellation and registration of the title has been requested.
The decision on the cancellation of the title deed and the refusal of the registration request, as the court has not paid the sale price in terms of the actual case, the collection of the 120.000,00 TL paid by the plaintiff from the defendant on the grounds that there is no title to the case filed against the defendant, the decision on the acceptance of the cancellation of the title deed and the registration request in terms of the combined case was overturned by the Special Department on the appeal of the plaintiff … on the grounds described in the title section above.
Local Court with the plaintiff that the defendant is valid if the contract between the contractor, the plaintiff’s Act is not fulfilling the contractual sales price for the payment of the plaintiff in a case independent of the concrete section is delivered to 30.09.1988 day and 1987/2, based on Decision No. 1988/2 case law can not be applied on the grounds that the decision to merge the previous stand in judgment, the plaintiff’s attorney has appealed the decision.
The dispute that comes before the General Assembly of the Law by resisting is brought together to the point where, in accordance with the execution rule, the plaintiff of the main case … determines the debt remaining from the sale price agreed in the contract and has it stored for payment to the defendant contractor Suleimen Nas, thus canceling the title deed registration in the defendant … of the independent section 6 subject to the lawsuit and deciding whether the registration of the main case on behalf of the plaintiff … can be decided.
In order to decisionthe dispute, it is first of all useful to make a statement about the construction contract in exchange for a share of the land.
Construction contracts in return for a share of the plot, the land owner to the contractor under the debt of transferring the ownership of certain shares in the land that is now, in contrast contractors and independent sections on a plot of land to build the ones that belong to the owner of the sections under this independent failover debt is a contract that is (Erman,H: Land in return for a share of the construction contract, 3. B., Istanbul 2010, p. 1; Coşkun, G.: The Legal Status of the Third Person Entitled to the Construction Contract in Exchange for a Share of the Land Plot, 1. dec. Edition, Ankara 2010, p. 25). In other words, in return for a share of the contract for construction of the plot mutual debt to both sides fully loads (synallagmatik) of the contract with the contractor and the contract agreed between the parties in accordance with the regulations on the plot took a while to make qualifications in building and zoning, the owner or owners of land plot has undertaken to act also designated as the transfer of the shares.
This agreement is not regulated in the Code of Obligations. However, such a contract can be concluded within the framework of the principle of freedom to conclude a contract. In the contract, it is also important how the landowner’s debt is to surrender the land and transfer ownership of the shares, in other words, dec the contract is about real estate, which way it will be done. However, since the transfer of ownership of real estate is in question, this agreement must be made in an official form. Because 213 of the Code of Obligations No. 818 (TBK 237)., article 706 of the Turkish Civil Code No. 4721., Article 60 of the Notarial Code., and Article 26 of the Land Registry Law. in its articles, it is regulated that contracts for the sale of real estate will be concluded in an official manner.
The form requirement here is not a proof, but a condition of validity, and although a contract concluded without complying with the official form will face a strict invalidation sanction, an exception was made to this by the Decision of 30.09.1988 days and 1987/21, 1988/2 Decision to Merge Case Law.