14. Legal Department 2019/3186 E. , 2020/4622 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
It was decided that the above-mentioned written decision issued by the district court on the cancellation and registration of the title deed based on the right of pre-emption between the parties; Our apartment was approved on 07/03/2019 days and 2016/16109, 2019/2079 dec. It was requested to correct the decision by the defendant’s deputy within the time limit, but all the documents in the file were examined and considered necessary:
DECISION
The case concerns the cancellation of the title deed based on the right of pre-registration and the request for registration.
Petition dated 03.12.2015 plaintiff attorney with the client in the share of the defendant located in the village of…, 2347, 7149, 7150, and real estate parcel No. by purchasing a share in the defendant about the purchase of the shares of the shares in question the right of preemption, they bet the deed and using it on behalf of the client has requested the cancellation of the registration.
The answer is the defendant in the petition to the deputy, 24.11.2015 of the total price of shares purchased by the client on the date of 58.000,00 TL is those who sell this amount by bank transfer to the assignee of the lien is filed in the sales contract that is sent before the official failure to do on 25.11.2015 is fixed by applying to the tax office if the sum of the actual sales price 58.000,00 TL noting that 9.240,00 TL defended the dismissal of the case requested via preemption.
The court decided to accept the preliminary case at a cost of 9,240.00TL.
Upon the appeal of the defendant’s attorney, it was decided to approve the decision by Decision No. 2016/16109, Decision No. 2019/2079 of 07.03.2019 of our Department.
The defendant’s deputy has requested a correction of the decision.
It is mentioned that the legal right to preemption has two main purposes. The first is to prevent unwanted people from entering among the stakeholders; the other is to reduce the number of stakeholders and facilitate the decimation of shared ownership.
The legal right of pre-emption arises at the moment when the joint ownership relationship is established and continues to exist as long as the ownership relationship continues; in the event that one of the stakeholders sells its share to a third party, the pre-emption right becomes available.
733 of the Turkish Civil Code. in accordance with the article, within three months of notification of the share sale to the holder of the pre-sale right, and in any case within two years after the sale, a new sales relationship arises between the holder of the pre-sale right and the buyer when it is used by filing a lawsuit and reaches the addressee of this dec.
2 of the Turkish Civil Code No. 4721. in its article, it is stated that everyone is obliged to comply with the rules of honesty when exercising their rights and fulfilling their debts, and as a sanction for non-compliance, abuse of the right will not be protected by the legal order.
Although there is no regulation explicitly preventing the exercise of the legal right of preemption in the event that the actual installment is available in a real estate subject to a shared ownership relationship, the Court of Cassation 6. In the decisions of the Law Department and our Department, stability has been found; subject to preemption relation to the case where the share of each stakeholder to be divided between them and own immovable is located in a specific part of paydaslarca specially one of them while using the corresponding share in this place where he’s been using himself and sells to a third party the seller in time in this place claim to the title deed of the plaintiff who do not use the right of preemption due to sales, TMC 2 No. 4721. it is incompatible with the honesty rule contained in the article; it is accepted that the claim of malice can be put forward at all stages of the case in accordance with the Decision to Merge the Case Law No. 17/1 of 14.02.1951 and No. 17 and should even be taken into consideration by the court spontaneously.
The subject matter of the case; official under the sales contract, the defendant in the case, the subject matter of his real estate on 24.11.2015 their share of total 9.240,00 TL bought Gelendost dated 25.11.2015 presented by the defendant to file with the IRS, Afsar 2347, 7149, 7150 parcels and additional mortar commented, 1.950,00 TL-magnitude of the tax receipts, according to the defendant’s actual value, expressed as the amount of a fee, it is understood that it has completed. This correction process was completed before 04.12.2015, when the pre-trial case was filed.
The defendant party has corrected the error contained in the sales contract and caused by the sale price by contacting the competent authority before the lawsuit is filed.
The issue here is whether the defendant has the right and authority to correct any error in the contract that was officially issued before the lawsuit was filed; if the correction was made, whether this correction will affect third parties outside the contract.
It is not right that comments and evaluations related to the right to pre-empt, which is one of the legal constrictions of immovable property ownership, should be expanded in favor of the owner of the right to pre-empt in a way that damages the essence of the right to property. Therefore, the sale and correction transactions that took place before the lawsuit was filed should be evaluated as a whole and the current situation by giving equal value to all of them. 2 of Law No. 4721 that the plaintiff who makes a claim based on the sales agreement and the information herein that is the subject of the pre-trial lawsuit does not accept the defendant’s action to correct an error in this agreement before the lawsuit is filed. it is incompatible with the rule of honesty contained in its article. While the case should be accepted over the sale price of TL 58,000.00, the acceptance over TL 9,240.00 is not in accordance with the law.
Since the defendant’s deputy’s decision correction request was in place for the reason described, the decision had to be overturned on the written grounds.
CONCLUSION: For the reasons described above, it was decided unanimously on 07.09.2020 to ABOLISH Decision No. 2016/16109 of our Department dated 07.03.2019, Decision No. 2019/2079, to CANCEL the provision, to refund the advance decision correction fee to the depositor, on 07.09.2020.
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