General Assembly of the Law 2020/168 E. , 2020/394 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
1. At the end of the trial held due to the “receivable” case between the parties, Istanbul An Decolu 28. Upon appeal of the decision on the dismissal of the case by the Court of First Instance by the deputy plaintiff, the Court of Cassation 15. 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 plaintiff.
3. After reviewing the documents in the file by the General Assembly of the Law, they were discussed as necessary:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. Dec dec. 05.02.2016 In his petition dated Dec. 05.02.2016; a construction and sale promise agreement was signed between his client and Murisi Izzet Önel of the defendants on 06.09.1995 in exchange for a share of the land, his client completed the construction and delivered the apartments in 1997, then a dispute arose between them in 2009, in the lawsuit filed by the landowner on the grounds that the building was contrary to the dec. 15 of Istanbul Anatolia. 2009/343 E of the Court of First Instance. termination of the contract with the client file numbered with the shares on behalf of the decision on cancellation of the decision that has been made and confirmed by the Supreme Court, between the land owner of the land subject of the case with his client if it has 1/2 percent share separately, 4 apartments and 1 store owner and the client that is used by the client due to the cancellation of the shares on behalf of the land owner as the owner of the entire building, due to the effective termination of the contract, unjust enrichment, arguing that these should be disposed of according to the provisions of the legal relationship between, he requested and sued to decide on the collection of 10.000TL from the defendants together with the interest that will be processed from 25.03.1997, when the building was delivered, provided that the rights to the surplus were reserved.
The Defendant’s Answer:
5. On the petition dated 02.03.2016 deputy defendants; that should have dismissed the case because of the statute of limitations, the case is building on the subject land prior Muris of their clients, subject of the case of the building of the building demolished by the client in return for a share of the plot on a lawsuit to demand the termination of the construction contract Istanbul Anadolu 15. 2009/343 E of the Court of First Instance. he defended the rejection of the case by stating that the termination of the contract and the cancellation of the share of the land in the defendant’s name were decided with dec numbered file, the decision was finalized by passing the Supreme Court audit, the building built by the plaintiff was made contrary to the construction, the plaintiff tried to collect the cost of construction that had no value.
The Decision of the Court of First Instance:
6. Istanbul Anatolia 28. The decision of the Court of First Instance dated 21.06.2016 and dated 2016/52 E., 2016/185 K. by its numbered decision; Istanbul Anatolia 15. 2009/343 E of the Court of First Instance. and 2013/553 K. numbered in the file, where compensation is made on an unlicensed basis for the construction of the illegal nature of construction, zoning staying on the road in the implementation plan, the license would not be able to connect to the decision becomes final on the date 26.02.2015 determined and, according to the Supreme Court practice, illegal, and according to the zoning plan, the reconstruction of the building remaining fixed on the road that are in violation of the license has an economic value and economic value because they are not able to connect to non-compensation would not be required for the building, on the grounds that the case is dismissed.
The Decision to Spoil the Private Apartment:
7. Istanbul Anatolia 28. Against the above-mentioned decision of the Court of First Instance, the plaintiff has requested an appeal by his/her deputy within the time limit.
8. Supreme Court 15. By the Law Department dated 29.05.2018 and dated 2018/927 E., 2018/2226 K. by his numbered decision;
Temporary 16 added to the Zoning Code No. 3194. since the article will be applied to illegal and illegal structures built before 31.12.2017, it is a regulation that is supposed to be applied retroactively in terms of its content, since it is a retroactive legal regulation that is an exception to the acquired right, this provision should be applied by the courts for the cases at hand, as well as the new regulation should be observed by the Supreme Court at the appeal stage, accordingly, when the concrete event is evaluated, Article 16 of the Law No. 7143 on the Restructuring of Taxes and Some Other Receivables and Amendments to Some Laws, which entered into force on 18.05.2018. provisional article 16, which was added to the Zoning Code No. 3194 with its article. according to the article, it is necessary to investigate whether structures can be made legal, in this case, the possibility of making the structure legal temporarily to be valid until the reconstruction or urban transformation is applied for and the necessary actions are completed within the specified regulation period, and the structure registration certificate is obtained by determining whether the structure has been made legal by obtaining a court re-evaluation of the dispute, stating that the decision must be overturned, according to the reason for the violation, it has been decided that there is no place for the plaintiff’s attorney to examine other appeals for the time being.
The Decision to Resist:
9. Istanbul Anatolia 28. The decision of the Court of First Instance dated 05.09.2019 and dated 2019/177 E., 2019/274 K. by its decision No. 16 of the Law No. 7143, which entered into force alongside the previous grounds. article 16 of the provisional Law added to the Zoning Code No. 3194. pursuant to Article 31.12.2017 construction for the reconstruction of the record made before the date of the construction of illegal structures and contrary to the implementation of urban transformation based on documents valid or recognized even if only temporarily up to the possibility of legalization, although the subject of the case the development plan of staying on the road for public building, structure, the granting of the certificate of registration of the document is not possible illegal construction and real estate development contrary to the registration as you get off of its path through the implementation of the zoning plan doesn converted to collapse by for every moment and is able to, even if the zoning plan is not implemented, the building must be demolished no later than the reconstruction and urban transformation is implemented, and the plaintiff’s decision to resist on the grounds that there may be no enrichment of the building due to the building.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the deputy plaintiff within the time limit.
II. DISPUTE
11. 16 of the Law No. 7143 on the structure that is contrary to the construction in a concrete event and is illegal without dispute by the court. article 16 of the provisional Law added to the Zoning Code No. 3194. in accordance with the article, it is collected at the point where it is necessary to investigate whether the structure has been made legal by obtaining a building registration certificate.
III. reason
12. In terms of resolving the dispute, first of all, the temporary 16 added to the Law No. 7143 and the Zoning Code No. 3194. in case of obtaining a building registration certificate in accordance with the article, it has been considered useful to make general explanations about the status provided by this document.
13. provisional Article 16 of the Law No. 7143 and the Zoning Law No. 3194. item added in the first paragraph of the article and disaster risk preparedness and its annexes within the scope of unlicensed or license in violation of registration and reconstruction of structures in order to achieve peace, 31.12.2017 made before the date of the institution and the authority of the Ministry of Environment and urbanization for structures and organizations 31.10.2018 be applied until the date of this article, until the date of payment of the registration fee and the fulfillment of the terms in the certificate of registration issued on 31.12.2018 where arrangements can be included.
14. The expression ”building registration certificate” is used in the provisional Article 16, which was first added to our law by the Zoning Code No. 3194. he entered with substance. Temporary 16 added to the Zoning Code No. 3194. the motive of the item “in their preparation for Disaster Risk unlicensed, and in violation of its license or registering with the Annexes of the structure in violation of the zoning regulations by providing finance to projects of conversion, the transformation will be done faster and more efficiently in order to 31.12.2007 made before the date of structures, building owners and their recording system according to the declaration upon application to the processing of these structures to be prepared for the structure of water, electricity and natural gas to be able to connect to the judiciary and the decisions taken in order to reduce the workload and fines collected in municipalities that are not sacrificing demolition, if the consent of half of the owners is found, it is stated that ”a change of breed and condominium ownership can be established without seeking a building use permit”.
15. Considering the said article together with its justification as a whole, it is understood that by issuing this document on buildings that are contrary to zoning as a result of the application, the owners of the structure have been granted authority, and an administrative status has been provided for the use and availability of the structure. This status, provided by issuing a building registration certificate, provides the building owner with protection by the administration from using a structure that is not protected and actually needs to be demolished due to the fact that it is contrary to zoning legislation.
16. Provisional Article 16/3 of the Zoning Code No. 3194. in the article, it is also clearly stated that the building registration document is intended for the purpose of using the structure. Considering these issues, it is understood that the regulation allows the use of structures that are contrary to the construction and need to be demolished, and the administration allows the use of the structure to the building owner.
17. In addition, in the provisional Article 16/10 of the Zoning Code No. 3194, it is clearly stated that the building registration certificate is valid until the reconstruction of the structure or the implementation of urban transformation, and the provisions of the zoning legislation in force will be applied if the structures with a building registration certificate are renovated. In particular, it is understood that the building registration document provides a temporary status for the use of the structure, although the structure is contrary to the zoning with this status, it is allowed to be used by the administration, but it provides for the implementation of the provisions of the zoning legislation in force if the structure is renovated.
18. Provisional Article 16/1 of the Zoning Code No. 3194. if the conditions specified in the article are met, the immovable owner is granted the right to obtain a building registration certificate, and there is also no mandatory statement to the immovable owner about the exercise of this right here. Considering this situation, no one will be forced to apply for a building registration certificate without their consent. Mutual action with the construction contract in return for a share in the plot, the construction contractor has with regard to the building structure made in contravention of the certificate of registration, the owner of the plot will not make.
19. However, as stated above, the building registration certificate will not make the building suitable for construction in such a way that it will be inhabited as stated above when the owner of the immovable property receives a building registration certificate related to the structure that is contrary to the construction.
20. Considering the concrete event in the light of these principles and explanations; The construction contract for the share of the land signed between the plaintiff and the mur dec of the defendants, Istanbul An Decolu 15. It is understood that by the decision of the Court of First Instance dated 06.11.2013 and based on 2009/343, Decision No. 2013/553, the structure built by the plaintiff was made contrary to the construction and its termination was decided due to the fact that it was not possible to obtain a residence permit.
21. provisional Article 16, which was added to the Law No. 7143 and the Zoning Law No. 3194. taking into account the regulations contained in the article, the building registration certificate is related to the use of a structure that is contrary to the construction and does not make the structure suitable for construction. The building registration certificate is valid until the reconstruction of the structure or the implementation of urban renewal and provides a temporary status for the use of the structure. In this case, it will not be effective to determine whether the defendant real estate owners have received the building registration document.
22. For the reasons described, the defendant has decided to resist the fact that there is no need to investigate whether the owners of real estate have applied to the administration to obtain a building registration certificate.
23. However, since the appeals on the merits of the case have not been examined by the Special Department, the file should be sent to the Special Department for the examination of the appeals on these aspects.
IV. result:
For the reasons described;
The decision to resist is in place, and the basis of the case is the 15th part of the file for the examination of appeals on the merits of the case. TO BE SENT TO THE LEGAL DEPARTMENT,
However, due to the fact that the way to correct the decision is open, first of all, these actions will be performed by the court, if the way to correct the decision is applied for, the file will be sent to the General Assembly of the Law, and if it is not applied for, the court will send it directly to the Special department,
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, it was unanimously decided on 10.06.2020 that the way to correct the decision would be open within fifteen days from the notification of the decision.
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