General Assembly of the Law 2017/845 E. , 2020/723 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
1. At the end of the trial held for the “compensation” case between the parties, Alanya 4. dec. Upon appeal of the decision on the dismissal of the case by the Court of First Instance by the deputy plaintiffs, the Supreme Court of Cassation 23. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the deputy plaintiffs.
3. Provisional Article 3 of the Civil Procedure Code No. 6100 (HMK) as of the date when the decision to resist has been examined by the General Assembly of the Law and it has been understood that the decision to resist has been appealed within the period of time and the decision to resist has been made. 438 of the Code of Civil Procedure No. 1086 (HUMK), which is being implemented in accordance with its article. since the second paragraph of the article does not provide for a hearing on the appeal review of decisions to resist, the refusal of the plaintiffs’ attorney’s request for a hearing was decided and discussed as necessary after the documents in the file were read:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. The deputy plaintiffs filed a petition dated 22.11.2012; 14.05.2005 in return for a share of land on a construction contract between the parties was to be performed pursuant to the contract from the construction to be given to the owners of the flat land that is at least 24, the defendant will fall to the contractor completed the manufacture of the apartments, although it is the plaintiff’s duty of independent parts has not been completed, signed between the parties in return for a share of the plot of in accordance with the construction contract should be completed within 18 months from the date of the construction permit, even though the construction is not over, therefore, he must pay the penalty 500tl monthly for each apartment of the defendant’s delay, the construction is defective, shifts occurred in the basis, how much has been notified in the notice by the defendant for taking delivery of the building if the building is not a condition of delivery of the surplus by asserting that plaintiff’s duty without prejudice to the rights on the construction of the flats you must finish from the date of 17.10.2007 24 monthly 500tl delay penalty for each apartment, a total of TL 729.000 legal interest, together with the decision to be given to the defendant requested that the collection from.
The Defendant’s Answer:
5. The defendant’s deputy filed a response petition dated 17.12.2012; due to force majeure and completed the construction of the economic crisis in the country, has not zoning barriers still continuing the construction of the plots where the decision of the Administrative Court is located in the area in the zoning application has been canceled, therefore, dated 18.03.2008 of the municipality, the construction of the request that are not being taken into consideration fundamental for a visa stated, commissioned by a client detection result of the construction is completed before the aforementioned date, determined that the cancellation of the application with the zoning of housing construction permits has been taken due to force majeure, the actual delay is the land owners of other causes of requests for changes after the completion of construction, the construction is actually completed in the event that they did not get delivered to their apartment, land owners, and they handed their share of the plot falling of his client, the plaintiffs ‘ offices, they actually get delivered, or the apartments themselves beginning to get the tenant, stating that block A slipped during the road work carried out by the Municipality to the north of the blocks and that it was decided to demolish block A by the council decision dated 22.11.2012 and that the demolition process had taken place, he requested that the case be dismissed.
ruling:
6. Alanya 4. The decision of the Court of First Instance dated 15.01.2014 and dated 2012/663 E., 2014/6 K. by its numbered decision; Antalya 2 of the zoning plan in the neighborhood where the parcels subject to the contract are located. The decision of the Administrative Court dated 05.04.2007 and dated 2006/1919 E., 2007/527 K. where is revoked by the decision of the decision by the State Council to onanar 13.05.2010 becomes final on the date the receipt of the construction permit by the defendant on 17.04.2006, according to the agreement from the date of receipt of registration and the 18-month construction on 17.10.2007 the end of the period when it is filled Administrative Tribunal within the period of construction in the area where the real estate is located in the area zoning plan for the construction of the processes concerned because all of the registration has been cancelled by the mayor stopped, the defendant for the construction of a written response dated 18.03.2008 the basic request is rejected with the visa of the municipality where the real estate is located in the area where the zoning plan despite the cancellation, where the illegal construction was attempted by the plaintiff, in this context, within the scope of the project, building a team is made up of all of these issues are considered together when the defendant cannot be attributed to a defect in the cancellation of the zoning plan, zoning plan for the revocation of previously unpredictable by the defendant, the development plan has been cancelled in a place that it is impossible to proceed with the construction of the licence cannot be reclaimed, at this stage, it was decided to dismiss the case on the grounds that the defendant could not be held responsible for the criminal condition due to the fact that the construction was not completed on time.
The Decision to Spoil the Private Apartment:
7. Alanya 4. Within the period against the above-mentioned decision of the Court of First Instance, the plaintiffs requested an appeal by the deputy.
8. Supreme Court 23. By the Law Department dated 20.01.2015 and dated 2014/6179 E., 2015/310 K. by his numbered decision;
“… In accordance with the construction contract in exchange for the share of land between the parties, it dec dec dec that the construction in question will be delivered to the land owners by obtaining a building permit within 6 months from the date of the contract and obtaining a preliminary residence permit within 18 months from that date. The building permit for the construction was obtained on 17.04.2006, and the plaintiff dec owners also agreed that the construction period would begin from that date, claiming that independent sections had not been delivered at the end of the 18-month period, and requested the collection of compensation for the delay. According to the municipal article dated 22.11.2013 covered by the file, it is reported that no action has been taken to stop the construction by them at the place of construction, so it is understood that no additional work can be done for the duration of the work. At the moment, basically, the work must be delivered 18 months after the construction permit date, that is, on 17.10.2007.
The court decided to dismiss the case by accepting that the period has been extended due to the cancellation of the zoning plan in the region where the construction was carried out, and as of this moment, the contractor has not defaulted on the delivery. However, less above-identified 17.10.2007 put forth in defense of the required date of delivery to the contractor by examining whether more will be added with time due to manufacturing will be added this time with the date, on the basis of history, otherwise in case of cancellation after this date 17.10.2007 the zoning plan on the basis of the contractor’s default in delivery after the fall of the revocation of the zoning plan for the UK’s 102/2 (119/2 TBK) pursuant to a decision should be made whether when will be evaluated and will affect the responsibility of, it has been a mistake not to take these matters into consideration.
In addition, the land-owners 1515 the plaintiff under the contract name, and it was agreed that an independent section Lot 1 will be given on 24 independent parts of the plot, which began to be rented by themselves or sit by the holders of savings has been advocated. As a matter of fact, various lease agreements have also been submitted to the file to provide evidence in this regard. As is known, the claim for compensation for delay in the subject matter of the lawsuit, in principle, refers to the actual damage suffered. In this case, if it is determined that the contractor has defaulted on delivery as a result of the research to be carried out in accordance with the above paragraph, it is necessary to reach an appropriate conclusion by investigating the date on which each independent part was delivered to the land owners dec
Likewise, the contention that belongs to the owners of the plot again in the matter of a block that is not destroyed when the file is within the scope of information and documents from being understood, with blocks and other independent sections of retrofitting should be done if the case is defended to be seated, the cause of the collapse of a block with other blocks in terms of the empowerment process by examining whether the fault of the contractor and the reason it is necessary in the case of the determination of the evaluation should be carried out in this direction.
It is against the procedure and the law to make a decision without taking into account the issues mentioned, and the decision had to be overturned for these reasons, …”the decision was overturned on the grounds.
The Decision to Resist:
9. Alanya 4. The decision of the Court of First Instance dated 10.07.2015 and dated 2015/190 E., 2015/439 K. by his numbered decision; subject of the case where the real estate is located in the neighborhood of the zoning plan is revoked by the decision of the Administrative Court, where the decision on 31.05.2007 to the municipality upon notification by the State Council to appeal against the decision on the final onanar, No. 2577 of iyuk 28/1 according to the article, you have to apply within 30 days of the notification the administration of the court, the decision of the municipality until the date of the receipt of a decision should fulfill the need for 30.06.2007, according to Article 102/2 of the Code of Obligations No. 818 (BK), according to Article 102/2, the defendant’s decision to resist default was made on the grounds that the zoning plan for the area where the construction was located was canceled before the completion date of the defendant’s construction expired, and the municipality had to implement the decision of the administrative court, according to the failure to finish the construction on time, the defendant had no fault in default.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the deputy plaintiffs within the period of time.
II. DISPUTE
11. The resistance path from the front of the conflict of the law with the general board; signed between the sides in a concrete case in return for a share of the plot of the construction contract pursuant to the contractor’s where you fall in defendant defaulted in delivery, the contractor specified in the adoption of private dairec ruining the stoppage of research in the decision of whether they should be made at the point of are collected.
III. reason
12. In order to resolve the dispute, it is first of all useful to examine the legal regulations related to the issue.
102, which bears the title “Liability in the event of an accident” of BK No. 818. the substance:
“The debtor, who is a contractor, is obliged to pay damages and losses due to the contractual performance of the debt, as well as liable for accidental damage that will occur.
The debtor may be relieved of this liability by proving that he has been committed by him without fault for one day or that the accident will hit something to be settled at the expense of the creditor, even if the debt has been fulfilled in a timely manner and time.”
It is arranged as follows.
13. The debtor in default is subject to Article 102/I of the Civil Code No. 818. according to the article, he was also held responsible for “accidental death and future damage”. The phrase “accident” has been used in a broad sense here. All the reasons that arise during the default without the fault of the borrower and make it impossible to perform also fall under the concept of “accident” (Akman, P./ Burcuoglu, H./ Altop, A.: Tekinay General Provisions of the Law of Obligations, Istanbul 1993, p. 926).
14. As a rule, the debtor gets rid of the debt if its performance becomes impossible for a reason that arose without the fault of the debtor (BK m. 117). However, if the immaculate impossibility arises after the default, this rule is not applied, the debtor is now even held responsible for the accident.
15. 102/II of BK No. 818. the article provides the debtor with two possibilities to get rid of responsibility for the accident. The debtor can prove that the default fell without fault, or that even if the debt was repaid on time, the thing owed will be accidental as to the detriment of the creditor. Therefore, if the debtor has defaulted without fault, it is enough for him to prove this to get rid of the liability for the accident. The point to be considered here is whether the borrower is simply at fault for defaulting. (Akman,P./ Burcuoglu, H./ Altop, A.: s. 927).
16. Even if the borrower is at fault for defaulting, he can get rid of the liability by taking advantage of the possibility of a second proof. Indeed, the debtor has the right to prove that even if the debt was repaid on time, the thing that is the subject of the debt will be accidental to the detriment of the creditor.
17. In order for the said burden of proof to be considered fulfilled, if the subject of the debt was given to the creditor, it must be fixed that it will also suffer an accident in his hands, as well as prove that the creditor will suffer from the accident that occurred, even if it was performed on time. If these two conditions are met, the debtor will be able to get rid of the liability even if he is defective in default (Akman S./ Burcuoglu H./ Altop A.: s. 927).
18. When evaluating a concrete event in the light of these principles and explanations; the land owner with the plaintiffs in return for a share of land between the contractor and the construction contract was signed on 14.06.2005 the period of construction of a construction permit is obtained within 6 months from the date of the contract is 18 months from the date of registration, provided that, construction, tourism due to the ban on the municipality or be stopped by war, earthquakes, such as in the case of mobilization for reasons that have achieved the arrest of the construction, which will be added to the duration of the construction period would be in case of completion at the time of construction, the contractor would pay monthly rent to the owners of the land, it was agreed that 500tl for each apartment.
19. According to the article dated 21.01.2013 of the Directorate of Reconstruction and Urbanization of the Municipality of Alanya contained in the file and the building permit was issued on 17.04.2006 and according to the contract, the construction must be completed on 17.10.2007.
20. In the article dated 18.03.2008 of the Directorate of Zoning Works of the Municipality of Alanya, the main visa request of the contractor related to the construction subject to the lawsuit was made in Antalya 2. It was stated that it could not be evaluated due to its cancellation by the decision of the Administrative Court.
21. The file is located in the municipality of Alanya article dated 16.07.2013 of the Directorate of Housing and Urban Development, in the case of the application of the buildings on the subject parcel zoning in the area due to the cancellation of the occupancy permit be issued, he said.
22. Antalya 2. The decision of the Administrative Court dated 05.04.2007 and dated 2006/1919 E., 2007/527 K. by its numbered decision, it was decided to cancel the zoning application process carried out in the region where the plots subject to the construction contract are also located in exchange for a share of the land, on appeal of the decision made, the State Council dec. 6. His apartment is dated 09.02.2010 and is dated 2008/1143 E., 2010 1215 K. it was approved by the numbered decision and the decision was finalized on 13.05.2010.
23. According to the construction contract for the share of land signed between the parties, the delivery time of the construction is dated 17 dec10 dec2007 and Antalya 2. The decision of the Administrative Court on the cancellation of the zoning plan was made on 05.04.2007. Upon notification of this decision to the Municipality of Alanya, there is no possibility to issue a building permit for the construction carried out by the municipality on the parcel subject to the lawsuit.
24. Since the decision on the cancellation of the zoning plan is related to public order, it cannot be said that the contractor is in default, as it cannot be expected from him to continue construction in violation of public order.
25. Therefore by the Local Court, the contractor’s construction finishing before the time in question the construction of the zoning plan for the area where is located the municipality to implement the decision of the Administrative Court for the cancellation and had the zoning plan for the area where the construction is located because it was aborted because it’s not finished in time the construction of the defendant on the grounds of the absence of a defect of the issued Decision.
26. The law in the General Assembly during the negotiations, the revocation of the zoning plan from the direction of force majeure why the plaintiff can be considered, however, the defendant defaulted compelling reason should determine before the fall, all the Administrative Tribunal of the case by the subject Real Estate is located in the place where the development plan is cancelled, if you cancel the question of the decision to permit construction will not affect the validity of the previously received a construction permit has been issued after the revocation of the zoning plan is not impaired earned the right to the land-owners from the direction of, for this reason, although it has been suggested that it is not appropriate to make a decision to resist the court while the decision to disrupt the Private Office should be followed, this opinion has not been adopted by the majority of the Board for the reasons described above.
27. As such, the decision to resist issued by the local court must be approved in accordance with the procedure and the law.
IV. result:
For the reasons described;
APPROVAL of the decision of the deputy plaintiffs to resist with the rejection of appeals,
Since the required appeal fee is received in advance, there is no room for receiving fees other than,
Provisional Article 3 of the Code of Civil Procedure No. 6100. 440 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. in accordance with the article, the decision was made by a majority of votes on 06.10.2020, with the path to correction of the decision open within fifteen days from the notification of the decision.
VOTE AGAINST
There will be two disadvantages to the approval decision.
Firstly, as of the delivery date, it will not be determined whether there will be a zoning cancellation. However, if there had been a research and examination such as a Private Apartment corruption, the issue would have been clarified.
Secondly, it is mandatory to obtain a building permit for construction within the zoning plan. With the finalization of the zoning plan, the right holders have the right to make an abstract structure. The right to make an abstract structure is transformed into the right to make a concrete structure by obtaining a building permit. The General Principles of building law have been examined in the work entitled (Taner Ayanoğlu Istanbul 2014) together with the decision on obtaining a building permit, revocation and administrative judgment. 18 of the zoning code of the administrative court. the decision to cancel the zoning due to the deduction of the partnership share (DOP) related to the article is a decision related to the right to abstract construction within the zoning plan. There is no decision taken by the administrative court on the revocation of the building permit, which has the right to concrete construction.The building permit has an acquired rights dimension. The acquired rights dimension has such views as respect for acquired rights and not being affected by changing rules, as well as the need and necessity of expropriation if it is to be affected. a for a thorough discussion of the administrative jurisdiction of the subject.g.e. s. 195 vd.na it can be looked at.
Mecelle 22 has gained the general principle of ”the amount of necessities is appreciated”. Although the zoning order has an imperative character in relation to public order, I am of the opinion that there is a saving that exceeds its purpose in saving for the issue related to the administrative jurisdiction. I think that the decision of the administrative court on the cancellation of zoning was made to a transcendental error of evaluation when it was accepted and the result was reached as if the building permit had been revoked. If there had been a decision to revoke the building permit, I would not have had any objection to the result reached.
For the two reasons that I briefly explained above, I cannot agree with the majority opinion on the approval of the decision to resist. I think that the decision to resist will be broken, as in the decision to break the Private Apartment.
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