1. Legal Department 2019/1645 E. , 2021/2045 K.
“Text Of Jurisprudence”
COURT : SAMSUN DISTRICT COURT OF JUSTICE 3. law office
TYPE OF CASE : CANCELLATION AND REGISTRATION OF TITLE DEEDS-RECEIVABLE
Upon the decisiveness of the decision made by the court of first instance at the end of the case on the cancellation of the title deed and registration- price request between the parties to the case by the plaintiff … District Court of Justice 3. The decision on the rejection of the application for appeal by the Legal Department was appealed by the plaintiff during the hearing within the legal period, but; on Tuesday, 06.04.2021, which was determined as the day of the hearing, the plaintiff who appealed came to the main … and the defendant’s deputy Lawyer who appealed … started the hearing, the oral statements of the attorney and the noble who came after the decision was made to accept the appeal petition, which was apparently granted and registered, the hearing was heard, the hearing was reported to be over, the work was decided. On the contrary, the report prepared by the Examining Judge was read, and his opinion was taken. The case was reviewed and discussed as necessary:
-DECISION-
The case concerns the cancellation of the title deed based on the legal reason for the corrupt registration and the request for registration-price.
The subject of a lawsuit, the plaintiff 667, 994, 1010 parcel No. kayden maliki immovable, while the defendant in an unlawful manner, as a result of his execution, monitoring, and illegal tender, the aforementioned tender to the defendant on account receivable that had been immovable, the defendant before the day of payment of the loan goes to follow up, and had been collecting on a debt, while the subject matter of the case of the immovable properties at a very low cost of having the subject matter of the case by saying he didn’t know about the sale deed of immovable property name registration records with the cancellation of; the answer the answer the subject matter of the case undue notice of immovable property, with fair values that were sold without advertisement and newspaper under repeated execution monitoring that is done by specifying the subject of a lawsuit on behalf of the real estate without a registration, to the payment of a fair price; cancellation of registration has been requested in the petition dated 24.02.2017 Correctional petition if the subject matter of the case of immovable property by the defendant 3. payment of the fair value of real estate due to the fact that it has been transferred to persons; with the petition dated 20.03.2017, he asked the defendant for its collection together with the interest of 73.668,00 TL regarding the value of the real estate.
The defendant believes that the court is unauthorized and without duty, the statute of limitations has expired, as a result of the enforcement proceedings against the defendant based on the loan receivable obtained with a mortgage, the real estate subject to the lawsuit was acquired by a jul-off tender, the tender was finalized, there were no irregularities in the transactions, the real estate subject to the lawsuit 3. he argued for the rejection of the case by stating that there is no adjective of the party due to the fact that it has been transferred to the persons, and that there is a definite provision due to the lawsuits filed by the plaintiff before.
Samsun Regional Court of Justice 3 upon the appeal of the decision made by the court of first instance on the rejection of the case on the grounds that the statute of limitations for unjustified enrichment has expired by the plaintiff. The Legal Department has decided to reject the application for appeal.
From the contents of the file and the evidence collected; subject of the case, 667, 994, 1010 spruce No. parcel of immovable Executive Directorate dated 27.08.1996 registration No. 1995/98 written instruction from the file according to the writings of the land registry Directorate, defendant/bank instead of the foundations of the creditor, on account of finalization of the tender for sale of the immovable by naming a required part of official registration of the deed in the name of the recipient according to the contents of the case while the subject matter of immovable property is registered with the sales process on behalf of the defendant from the lawsuit 18.08.1998 dated’e Case No. 667 dated 23.12.2002 the sales process immovable parcel by him from the case with’e, parcel No. 1010 case of immovable case’e No. 994 dated 29.07.2003 parcel has been also the case with the case where the immovable is registered in the name of the sales process from the case where the entire circulation in a way that indicates the subject matter of immovable property Land Records, official notes and rests, not brought, the Executive Directorate of the Spruce No. Instruction based on their answers to muzekker 1996/98 reported that there had been the destruction of the file, but according to the records, Samsun 2. It is stated that instructions have been written from the Execution Directorate’s file No. 1995/2135, that the creditor is the defendant …, the debtor is the plaintiff …, …2. It is understood that the file No. 1995/2135 of the Executive Directorate was removed from the transaction on 23.09.1997 and destroyed.
As is known; 705 of the Turkish Civil Code No. 4721. in the article; “Acquisition of immovable property shall be by registration. Inheritance, court decision, forced execution, occupation, expropriation, as well as in other cases provided for by law, property is acquired before registration. However, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry.” 1022/1. in its article; ” The rights in kind are born with registration on the register; it receives their order and date according to the registration.”, 1023. in the article; “ Based on the registration in the land registry in good faith, this acquisition of property or another in-kind rightful third party is protected.”, 1024/2. in its article; “Registration based on a non-binding legal process or lacking a legal reason is corrupt.” regulations have been included.
In accordance with the above-mentioned legal regulations, real rights are born with registration in the land registry, and in order for registration to have legal consequences, it is also necessary to have a valid legal reason. It is clear that this issue is caused by the principle of provinciality of the title deed. However, if there is no legally valid reason for the registration, there is no doubt that the registration will be a corrupt registration and the registration will have to be canceled.
It should be noted immediately that the Turkish Civil Code No. 4721(TMK) 705/2. and Article 134/1 of the Executive Bankruptcy Code (IIK) of 2004. although it is clear that the ownership of the immovable property will be acquired before registration by means of a forced tender in accordance with the articles, there is no doubt that the acquisition of the property may become corrupt if the legal basis of the tender disappears due to irregularities in enforcement proceedings or tender proceedings.
As for the concrete case; although the case was opened with the request for cancellation of the title deed and registration based on the legal reason of corrupt registration and converted into a price in stages, the first instance court and the district court of justice made a erroneous assessment that the subject of the dispute was receivable based on gratuitous enrichment and the statute of limitations for gratuitous enrichment had expired, and the conclusion was reached.
As such, it should be decided according to the results of examining the merits of the work in accordance with the concrete facts and principles mentioned above, with the claim of corrupt registration due to irregularities in enforcement proceedings and tender procedures, and taking into account that such cases based on property rights can always be opened without being subject to a statute of limitations and a reduction in rights, while it is not correct to make a decision in writing with an erroneous legal assessment.
373/1 of the Civil Procedure Code No. 6100 with the acceptance of the plaintiff’s appeal, which was considered on the spot in the direction mentioned. according to Article 3 of the Samsun Regional Court of Justice. According to Article 371/1-a of HMK No. 6100, for the reasons written above, the decision of the Court of First Instance was overturned, the case was sent to the Alaçam Court of First Instance, which issued the decision, the Samsun Regional Court of Justice 3. It was unanimously decided on 06/04/2021 that he should be sent to the Legal Department and that the advance payment received should be returned to the appellant.