T.C General Assembly of the Court of Cassation Code of Law No: 2017/14-1761
Decision No :2018/407
Decision Date: 28.02.2018
TITLE DEED CANCELLATION AND REGISTRATION CASE – PRE-PURCHASE RIGHT – STAKEHOLDERS’
ACTIVE TAKSIM OF USES FROM THE PAST
WHETHER IT IS QUALIFIED OR NOT – TO EXERCISE THE RIGHT OF PRE-PURCHASE
WHETHER IT IS CONTRARY TO THE RULES OF DECENCY – DO NOT RESIST
YOUR DECISION IS BROKEN
ABSTRACT: The case is related to the cancellation of the title deed based on the right of pre-purchase and the registration request. In the concrete event, at the scene
in the sketch attached to the expert report dated 04.05.2012 issued as a result of the discovery made on 12.04.2012 (A)
the section marked with Sh. F.the section of, marked with (B) is O. I.of the section marked with (C), the plaintiff’s, (D) with
marked section S. F.it is stated that the is used Decently, and the remaining part is in the nature of an empty plot. Expert
as can be understood from the sketch attached to the report, the share purchased by the defendant on the immovable
there is no specific section. In that case, it should be mentioned that there is an actual taxi in the immovable
it is not possible. Therefore, the plaintiff’s use of the right to pre-purchase is contrary to the rules of honesty
accumulate should be considered. As such, the General Assembly of the Local Court of Law also
while it is necessary to comply with the decision to disrupt the Private Apartment adopted, it is necessary to resist the previous decision in the procedural and
it is against the law. Therefore, the decision to resist must be overturned.
(4721 P. K. m. 2, 732) (YIBK 14.02.1951 T. 1949/17 E. 1951/1 K.)
Lawsuit: Due to the “cancellation and registration of title deeds based on the right of Decency” case between the parties
at the end of the trial, Adana 1. 18.12.2012 Given by the Civil Court of First Instance regarding the rejection of the case
day and 2011/503 E. and 2012/691 K. October no. decision appealed by the plaintiff’s attorney Supreme Court
14. The date of the Civil Chamber is 24.09.2013 and 2013/6323 E. and 2013/12132 K. with the numbered decision:
“… The case is related to the cancellation and registration request due to the right of preemption.
The defendant defended the rejection of the case by stating that there is a de facto division in the immovable property.
The court decided to dismiss the case on the grounds that there is a de facto division in the immovable property.
The judgment was appealed by the plaintiff’s attorney.
The plaintiff is a non-litigant who is a stakeholder in the immovable property No. 5 parcel in which he is a stakeholder., s., R., T., s., s. and N.’earth
they transferred their shares to the defendant via sale on 30.03.2011 with a price of 306.000 TL, in fact
the share is worth 200.000 TL and the price is shown to be high in order to prevent the right to advance,
claiming that he wants to use the right of advance, on behalf of the 100/517 share registered on behalf of the defendant in the immovable
he asked for his registration.
The right to pre-emption, in real estate subject to the provisions of shared ownership, a stakeholder’s share of the real estate in part
or, if it sells completely to a third party, it is a right that gives other stakeholders the authority to purchase this sold share first. This right arises at the moment when the shared ownership relationship is established
and it becomes available by selling shares.
The immovable property to which the share subject to the Decommissioning case is related is privately owned by the stakeholders among themselves
while each stakeholder uses a certain part of the distribution, one of them uses the place that he himself uses, and this is
if the share corresponding to the place is sold to a third party, the seller does not claim this place at the time
the plaintiff’s use of the right of preemption due to the sale made in the title deed is 2 of the TMK. contained in the article
it is incompatible with the rule of acting honestly. Bad faith claim dated 14.02.1951 and numbered 17/1 Court of Cassation
In accordance with the Decision to Combine Case Law, it can be put forward at any stage of the case, as well as by the court
it should be taken into account spontaneously. In this case, there is no question of expanding the defense.
If there is an active sharing, the case should be dismissed.
In the concrete dispute, the share of the immovable property numbered 5 parcels of land 184/517 is the Decedent, the share of 100/517 is the plaintiff
the defendant, other shares are also registered on behalf of third parties outside the case. The defendant received this share on 30.03.2011 H.
T. and he bought it from his friends.
The section of the expert report dated 04.05.2012 based on the judgment marked with (C) in the October sketch is printed
as the plaintiff; the part marked with (A) and (D) as the kebab shop and garden, the part outside the case as stakeholders; (B)
the section marked with is used by the non-litigation stakeholder as workplace and home; as painted in yellow
the section shown is empty and the part purchased by the defendant; also, its use on the ground
it is also stated that there are stakeholders who are not. Scientific expert of non-litigation stakeholders who sell shares to the defendant
evidence that they used the section subject to the case shown in yellow in the October sketch attached to the report
is not included. Therefore, on the ground that corresponds to the share of the stakeholders who sold shares to the defendant, de facto
since there is no section that they use, the plaintiff who uses the right of preemption is malicious
it can’t be mentioned. It is not appropriate for the plaintiff’s preliminary request to be rejected for this reason.
The court should examine the merits of the work, leaving aside the issues explained in writing
it was not considered correct to establish a verdict in this way, therefore the decision had to be overturned …” on the grounds of
at the end of the trial, which was disrupted and turned back instead of the file, the court ordered the previous
the decision was resisted.
After the law has been examined by the General Assembly and it is understood that the decision to resist has been appealed during the period and
after the documents in the file were read, the requirements were discussed:
Decision: The case is related to the cancellation of the title deed based on the right of pre-purchase and the registration request.
The defendant’s attorney stated that the immovable property subject to the lawsuit was actually distributed, each stakeholder in accordance with the actual distribution
arguing that he used his place, he asked for the dismissal of the case to be decided.
The court decided to dismiss the case on the grounds that there is an active sharing on the immovable
has been given.
Upon the appeal of the plaintiff’s attorney, the decision is shown above by the Special Chamber
it was violated with justification and resisted by the court in the previous decision.
The plaintiff’s attorney appealed the decision to resist.
The dispute that comes before the General Assembly of Law through resistance, the immovable subject of the lawsuit
whether the use of the stakeholders on it from the past is in the nature of an active installment,
according to the conclusion to be reached here, the plaintiff’s use of the right to pre-purchase is contrary to the rules of honesty
it is collected at the point whether it is or not.
The legal right of pre-purchase means that a stakeholder in shared ownership fully owns his share in immovable property or
in the event that it partially sells to a third party, this share to other stakeholders or stakeholders on the same terms
first of all, a case that authorizes the purchase, depends on the item, is used with an innovation-generating (construction) case
right.
As a matter of fact, 732 of the Turkish Civil Code (TMK). article “Immovable property of a stakeholder in shared ownership
in the event that it sells its share in whole or in part to a third party, other stakeholders shall pre-empt
they can exercise their right.”it contains the judgment. With this right, the legislator, the persons who make a property association
for the purpose of ensuring that the right they hold is not fragmented and that third parties enter into partnership
is moving. It is clear that the legal right of pre-purchase is one of the restrictions of the right of transfer.
This restriction arising from the law arises from the exercise of the right. Pre-purchase right
as long as it is not used, the sale to the third party will remain up-to-date.
However, it should be noted that; The actual issue of distribution is not regulated, as well as the use of the right to pre-purchase
there is also no regulation on its effect. This concept is applied with the case law of the Court of Cassation
has entered. According to the definition made by the Court of Cassation in the decisions made on the subject, actual taksim; legal pre-purchase
the shareholders of the immovable property to which the share subject to the right is related to are specially divided among themselves Decisively.
it is the case that each stakeholder uses a certain part and each stakeholder uses a certain part.
The doctrine also states that the actual state of division in shared ownership is independent of the decisions of the Court of Cassation
it is not defined and is only one of the uses of the legal pre-purchase right contrary to the honesty rule
it is described as (Köylüoğlu, E.: Önalım Case (Unpublished Doctoral Thesis), Ankara 2011, p.
93).
According to the definition made in the judicial case law, there are three conditions for the actual installment to be in question
is required. The first of these is a real estate to which the share subject to the legal pre-purchase right is related.
it is the presence. The second is that this immovable property is divided between the stakeholders by themselves. Dec. Finally the third
on the other hand, each stakeholder uses a certain part. Legal pre-purchase in case of actual installment
although there is no legal provision stating that the right cannot be used, the way the immovable is used is all
Deciphered by an agreement reached between stakeholders or an actual form of use has been formed, for a long time
if the stakeholders have adopted this situation, this entity will be registered as a shareholder and independent in action.
protection is a requirement of the honesty rule defined in Article 2 of the TMK. Because TMK’s 2nd
in the article, everyone must comply with the rules of honesty while exercising their rights and fulfilling their debts
the obligation has been imposed, the abuse of the right as a sanction for non-compliance
it is stated that its use will not be protected by the legal order. As is known, the right is clearly
in all cases where it is abused, there is also a violation of the honesty rule. The actual taxi is legal
this article of the TMK also forms the basis (Tunaboylu, M.: Önalim (Şuf’a) Cases, 4. b.,
Ankara 2008, p.440).
In the concrete incident, dated 04.05.2012, organized as a result of the discovery made on 12.04.2012 at the scene
in the sketch attached to the expert report, the section marked with (A) is the Ş. F.the section of, marked with (B) is O. I.in, (C) with
the plaintiff of the marked section, marked with (D) section S. F.the Deckhouse is used by, and the remaining part is an empty plot
it is stated that it is qualified. As can be seen from the sketch attached to the expert report on the immovable
there is no specific section for the share purchased by the defendant. In that case, the actual installment of the immovable
it is impossible to mention its existence. For this reason, the plaintiff uses the right of pre-purchase
the rules of honesty (TMK m.2) it should be accepted that it will not constitute a contradiction.
In this case, the Local Court also adopted by the General Assembly of the Law of the Private Apartment disturbance
while the decision should be obeyed, resisting the previous decision is against the procedure and the law.
Therefore, the decision to resist must be overturned.
Conclusion: The decision of the plaintiff’s bank attorney to resist with the acceptance of the appeal objections is not overturned by the Special Chamber
in case of DETERIORATION due to the reasons indicated in the decision, the depositor of the advance fee of the appeal in case of request
in order for the decision to be returned, the way to correct the decision will be open within 15 days from the notification of the decision,
the decision was made unanimously on 28.02.2018.
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