General Assembly of the Law 2017/1273 E. , 2019/911 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the “ecrimisil” case dec Bakırköy 7. The decision of the Court of First Instance on the partial acceptance of the case was dated 19.02.2013 and dated 2009/450 E., 2013/72 K. on appeal of the numbered decision by the plaintiff and the defendant’s deputies, the Court of Cassation 1. The letter of the Law Department dated 02.06.2014 and dated 2014/5242 E., 2014/10716 K. by his numbered decision:
“…The case is related to the ecrimisil request.
The court has decided to partially accept the case.
The file content of the plaintiff’s evidence, that owns kayden 104 m2, plot No. 4819 parcel immovable in the nature of a section , including the path to the sidewalk elatild alleged by the defendant, whether by 19.4.2002-19.4.2007 dates for the period between the payment request, when he opens adequate with the case at hand, the defendant’s record, property, or from the absence of a right arising from the contract, but by the defendant opened on 4.4.2006 Bakırköy 4. It is understood that the expropriation case No. 2006/87 of the Court of First Instance was accepted on 12.12.2007 and the real estate was decided to be abandoned from the title deed as a way.
As a result of the trial conducted by the court, Bakırköy 7, which was filed against the Istanbul Metropolitan Municipality, taking into account the statute of limitations that the defendant put forward in the response petition, took into account def. The court of First Instance based on 2007/120-2008/249 K, File No. due to antagonism of the case is rejected by the timeout will not stop in that, by taking the expropriation of immovable until the date of trial the defendant remaining in the area as part of road and pavement without a valid reason 78,30 M2 determined and having decided upon the adoption of a rule that uses the case as there are no misses in. All of the plaintiff’s, defendant’s appeals on these aspects are not in place. Rejection.
As for the defendant’s other appeals;
As it is known, the administration, which confiscated the immovable property without making an expropriation decision or completing the expropriation procedures, is an unfair occupier. It is a tort for the defendant administration to determine the expropriation price, cancel the title deed and cancel the registration / relocation from the registry until the date the bidder opens the case. In cases of determination of the expropriation price, the collection of the real estate price determined according to the date of the case and the interest as of this date are subject to the owners / owners of the real estate will be able to request compensation back from the date of the said case. In other words, due to non-expropriation, ecrimisil may be requested by the defendant administration to determine the expropriation price by the date the lawsuit is filed. At the end of the expropriation case, the date on which the court decides to pay the expropriation price is not taken into account.
In a concrete case, the ecrimisile determined by the court for the period between 29.12.2004 and 4.4.2006, the expropriation (price determination and abandonment) case date, should be decriminalized, while it is not correct to judge the ecrimisile determined by a false assessment until 19.4.2007…”
at the end of the re-trial, the court resisted the previous decision by overturning the grounds and returning the file to its place.
APPELLANTS: 1-Deputy plaintiff
2-The defendant’s deputy
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 documents in the file were read, the requirement was discussed:
The case concerns the request for ecrimisil due to expropriation without expropriation.
The plaintiff’s Attorney, his client thrown by the defendant No. 4819 parcel maliki road pavement and immovable, while M2 is being used as hand 78,30 section, with the five-year period between payment dates for 19.04.2002 19.04.2007 Bakırköy Istanbul Metropolitan Municipality against prompt, adequate 7. Although the case was filed in the case file No. 2007/120 of the Court of First Instance, the case was dismissed due to the absence of passive hostility, the decision was finalized by passing the Supreme Court’s audit, during the trial of this case, the defendant … against the client of the Presidency of Bakirkoy 4. The Civil Court of First Instance filed a lawsuit in its case No. 2006/87 for the determination of the expropriation price of the place subject to the case and the abandonment of the title deed, as a result of the trial, this part was abandoned on behalf of the defendant, on the other hand Bakırköy 7. The court of First Instance of the file that is provided in the Main 2007/120 numbered with the expert’s report on 19.04.2007 60.728 19.04.2002,00 TL occupation has been determined if the cost of the municipal expropriation up to the date of the decision (19.02.2002-27.09.2005) ecrimisil the 41.128,68 the opinion that TL has been reported, however, that the expropriation of the property will pass on to the administration decision, not on the deed transferring the property would be foreclosed saying, for the period from 19.04.2002 to 19.04.2007, 60,728.40 ecrimillin requested and sued to be decided for collection together with its legal interest, provided that the rights to the surplus were reserved.
The defendant’s representative, which is the main artery of the subject matter of the case are located on the street while I immovable Beyazıt year after the expropriation, the majority on the street are included, therefore, the responsibility of Istanbul Metropolitan Municipality that belongs to the immovable building that is a large part of the rest of eminent domain until the decision on the outcome of the case, both are being used by the owners of the remaining part of the building, so that the client is not responsible occupation, prompt and adequate payment subject to revision dated 29.07.2003 immovable check the path to the application Bahçelievler 1/1000 scale development plan by the decision of the municipal councillors in the field remains were expropriated and No. 2694 27.09.2005 date that it was decided that, since 04.04.2006 reconciliation cannot be achieved with Malik 4 Bakırköy identification and compensation payments that filed in the courts and for the cancellation of receiving 12.12.2007 2006/87 date and is based on the decision of expropriation decision 2007/366 104,00 M2 surface area with the determination of the cost of the real estate immovable as abandonment if it is decided that way, stating that the ecrimisil request is subject to a five-year statute of limitations, the request must be rejected in terms of the part that has expired as of the date of the lawsuit, as well as the actual disposal of the real estate as a road in the development plan, occupation and damage cannot be mentioned, as well as the request for ecrimisil in an amount equivalent to the value of the real estate is exorbitant, he asked that the case be decided to be rejected.
By the Local Court, the remaining part of the pavement and Road in the area, m2 immovable 78,30 the defendant used without justifiable reason, Bakırköy 4 the cancellation of the court of First Instance on the part of the firm, in terms of price to appeal in order to open path that established according to the announcement, the date of the plaintiff’s property rights continues until 12.12.2007, thus, plaintiff’s 19.04.2007 adequate until the date of payment can be requested, however, that 19.04.2002 – 29.12.2004 on the grounds that the statute of limitations has expired for the period between these dates due to denial of adequate timeout the request for payment, 29.12.2004- for the period between 19.04.2007, it was decided to collect a total of 12,891.13 ecrim deciles together with legal interest from the date of the case.
The decision was appealed by the plaintiff and the defendant’s deputies, the Special Department decided to completely reject the plaintiff’s attorney’s appeal request on the grounds described in the title of the decision above, and partially overturn the decision in terms of the defendant’s attorney’s appeal request.
It is stated that the court cannot exercise the saving powers of the owner within the scope of the right of ownership and, in particular, the right to use real estate as long as the right of ownership remains, TMK 683 and 35 of the Constitution. 705 of the Turkish Commercial Code, which would constitute a violation of its article. according to the article, the administration performing the expropriation process does not have the right to save on real estate before the registration decision, so the registration owner’s right to save within the scope of the right to own real estate before the registration decision continues, the owner loses the right to own property and, accordingly, the right to claim ecrimisil from the date of the lawsuit filed to determine the expropriation price, it was resisted in the previous decision on the grounds that it is incompatible with the practices adopted both by the articles of law and by the established decisions of the Supreme Court, as well as with the principles of equity.
The decision to resist was appealed by the plaintiff and the defendant’s deputies.
The dispute that comes before the General Assembly of Law through resistance is collected at the point where the latest date when ecrimisil can be requested is the date of filing this case or the date of the decision, given that the defendant … has previously been sued for the determination of the cost of expropriation and abandonment in the current case that is subject to ecrimisil request due to expropriation without expropriation.
It is useful to examine the appeals of the deputies of the parties to the decision to resist separately.
I-In the examination of appeals of the plaintiff’s deputy;
The first decision established by the local court on the partial acceptance of the case was appealed by the deputy plaintiff, and the appeals of the said person were evaluated and rejected by the Special Department.
In this case, the judgment has been finalized in respect of the plaintiff who appealed the first judgment but whose appeals were rejected. It is explained that for this reason, the plaintiff’s attorney, whose appeals were rejected, has no legal interest in appealing the decision to resist.
Legal benefit, on the other hand, is a condition sought for an appeal request as well as a condition for a lawsuit.
In that case, the request of the plaintiff’s attorney to appeal against the provision of resistance must be rejected due to the absence of legal benefit.
II-As for the appeals of the defendant’s deputy;
It should be noted right away that 683 of the Turkish Civil Code No. 4721 (TMK). a person who owns something in accordance with the article has the right to use, use and save as he wishes on this thing within the limits of the legal order. The owner can file a rations lawsuit against anyone who has his property in unfair possession, as well as file a lawsuit to prevent any unfair seizure.
Occupation, however, is neither malicious nor in education as set forth in the judicial application of the holder can request compensation from zilyet, No. 22/4 08.03.1950 the decision to merge date and case law; fuzuli’s occupation of the sides to each other and cannot be likened to a lease contract with their proper that he created will by nature be considered an unfair and unjust action would have to be compensated the losses due to the occupation was emphasized. Ecrimisil is a special form of compensation for damages due to unfair occupation, the least of which is the cost of rent, and the most is the loss in exchange for the loss of income deprived of.
As a matter of fact, TMK has 995. in the first paragraph of the article, well-intentioned non-possessor back to what he was unfair because he is obliged to give to the right owner which have achieved or failed to achieve the damages and shall not be obliged to pay compensation in exchange for the products.
On the other hand, the administration, which has confiscated the immovable property without making an expropriation decision or completing the expropriation procedures, is an unfair occupier. In case of confiscation without expropriation, the administration has committed an illegal act due to the fact that it has actually taken away the person’s (the owner’s) property by preventing him from using and taking advantage of it without acting in accordance with the Expropriation Law.
In the decision No. 1956/1956, 1956/6 Decision of the General Assembly of the Supreme Court of Jurisprudence Unification of Jurisprudence dated 16.05.1956; property without resort to eminent domain proceedings, the person duly kalbedile the road, in essence, a public legal entity of semen from the road Kalbe estate has a right to open the case against intervention, but this is the actual situation settle, as of a public legal entity that corresponds to the age of property rights to real estate and you can sue the cost of the price of the collection also want to transfer the right of ownership may also agrees that in the history of the case, which is the date that is the price it has been judged.
As it is clear from this decision, the owner of the immovable property can file a lawsuit against the administration that has unjustly confiscated the immovable property without completing the expropriation procedures to prevent confiscation or collect the cost of the immovable property. He can also file an ecrimisil or compensation lawsuit together with or separately from these lawsuits.
Within the scope of the above explanations, there is no dispute between the Private Office and the local court that in the concrete case, the respondent Municipality used the 78.30 m2 portion of the immovable property No. 4819 belonging to the plaintiff dec expropriated and therefore ecrimisille should be responsible.
However, there is an opportunity to expropriate real estate confiscated by the administration without expropriation at any stage for the public service. Kamulastirmasiz immovable concrete as a defendant in a case … pawing at about expropriation in accordance with the provisions of the expropriation law No. 2942 later took the decision, with the landowners sued because of the lack of consensus in the price immovable as expropriation compensation in Return Path from the deed also detected after it was decided to abandonment. The dispute is also collected at the point when the plaintiff, who is the owner of the real estate due to the determination of the expropriation price by the administration and the filing of a abandonment lawsuit, can request an ecrimisil by the latest date.
In order to resolve the dispute, it is first of all useful to briefly explain the relevant legal regulations.
As is known, the law of expropriation in the public interest required in cases where real and legal persons of private law for the expropriation of immovable property in the property of the state and public legal entities, the procedures, the calculation of compensation for immovable property easement rights management unused and in the name of the immovable property to be taken back to the registration of the transfer of immovable property between administrations transactions, dispute resolution procedures and methods regulates the mutual rights and obligations based on them (of the expropriation law No. 2942 m.1).
Administrations may expropriate immovable property, resources and easements necessary for the performance of public services or undertakings that they are obliged to do by law, by paying their prices in cash and in advance or in equal installments in cases specified in the law.
It is essential that the administrations apply the purchase procedure primarily in the expropriations that they will make about the immovable property registered in the title deed in accordance with the Expropriation Law. If expropriation cannot be carried out by purchase procedure, the administration shall comply with Article 10 of the Expropriation Law. according to the article, the place where the immovable property is located requests the civil court of first instance to determine the expropriation price of the immovable property and decide on its registration or abandonment on behalf of the administration in exchange for payment of this price. According to this article, in case of submitting a receipt that the expropriation fee determined by the court has been deposited on behalf of the rightholder or blocked for delivery to the rightholder in the future, if the rightholder cannot be determined, the registration / abandonment of the immovable property on behalf of the administration and the payment of the expropriation fee to the rightholder are decided.
In this case, Article 10 of the Expropriation Law. as clearly stated in the article, the registration provision issued by the court is final and the parties’ rights to appeal against the price are reserved.
As for when the property will be transferred to the administration in case of expropriation, TMK’s 705. in the second paragraph of the article, the situations in which ownership will be acquired before registration are indicated, and one of them is expropriation. In addition, the Law No. 4650 of 24.04.2001 and the different Expropriation Law entitled “Limitation of rights and transfer of ownership to administration” of the Law No. 25 on this issue. by including a special regulation in the article;
“In terms of exercising the rights and fulfilling the debts, the expropriation process begins with a notification made by the court in accordance with Article 10 for the owner. The transfer of ownership to the administration occurs by a registration decision issued by a court.
From the date of the registration decision issued by the court, the owner of the immovable property has the right to use it, for example, to make new construction or october on the immovable property that has been decided to be expropriated, or to make fundamental changes to the existing construction, is removed. After that, the value of what was done is not taken into account. with the provision in the form of “it is envisaged that the ownership of the expropriated real estate will be transferred to the administration together with the registration decision. Since the registration decision is final, it is not necessary to process the registration decision in the title deed in order for the property to go into administration.
One of the important consequences of the transfer of ownership to the administration is that after the registration decision, the owner’s right to use the real estate in any way ceases.
It should be noted, kamulastirmasiz throwing hand in as little as mentioned above, the case law of the court of Appeals of the General Board of the merge date and 1956/1 16.05.1956 the law based on the owner of the immovable in accordance with the decision of the decision in the case of 1956/6, created by the Maliki administration has granted approval as of the date of the actual situation of its lawsuit in exchange for the price and will failover to the administration of immovable property rights has revealed that the administration filed the lawsuit that the nature of the hand until the date of tort (12.03.2008 HGK of date and 2008/5-E. 243, 2008/246 K.) although it is accepted, it is not possible to mention a case of this nature filed by the owner of the immovable property in the case at hand, and therefore an approval given.
As such, the decision to resist the claimant’s request for compensation by the date of the decision of this abandonment is in place, considering that the real estate subject to the lawsuit, which was confiscated by the local court without expropriation for the reasons described above, was later expropriated by the administration, and the property was put into administration by the decision of the abandonment granted by the court in the case filed by the administration.
However, since appeals against the amount of ecrimicillin sentenced have not been examined by the Special Department, the file must be sent to the Special Department for the examination of appeals related to it.
CONCLUSION:1-REFUSAL of the plaintiff’s attorney’s appeal request for the reasons described in paragraph (I) above from the absence of legal benefit, refund of the fee to the depositor in advance of the appeal if requested,
2-For the reasons described in paragraph (II) above, it is APPROPRIATE to RESIST AND file 1 for the examination of the defendant’s attorney’s appeals against the amount of ecrimicillin. Provisional Article 3 of the Code of Civil Procedure No. 6100 on SENDING IT TO THE LEGAL DEPARTMENT. 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 19.09.2019 that the way to correct the decision would be open within fifteen days from the date of notification of the decision.
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