T.C. SUPREME
1.law office
Basis: 2015/13026
Verdict: 2018/13
Decision Date: 8.01.2018
CANCELLATION OF THE OBJECTION CASE – ECRIMISIL – THE RENTAL MONEY THAT THE IMMOVABLE CAN BRING IN FREE TERMS IN ITS CURRENT FORM IN THE FIRST PERIOD WILL BE DETERMINED – THE APPLICATION OF THE PPI RATE TO THE RENTAL PRICE TO BE DETERMINED IN THE FIRST PERIOD AND IN ACCORDANCE WITH THE REFUSAL OF THE REQUEST FOR EXECUTIVE DENIAL COMPENSATION
SUMMARY: It is not correct to determine the rental money that the real estate subject to the lawsuit can bring in free terms in the first period in its current form, to rule on the amount to be determined by applying the entire PPI increase rate to the amount determined for the first period in terms of subsequent periods, to decide on the claimant’s request for executive denial compensation, while it should be decided to reject it in writing with an erroneous assessment.
(4721 P. K. m. 683) (2004 P. K. m. 67) (6100 Pp. K. m. 266) (YIBK. T. 08.03.1950 1945/22 E. 1950/4 K.) (YIBK. T. 25.05.1938 1937/29 E. 1938/10 K.) (YHGK. 25.02.2004 t. 2004/1-120 E. 2004/96 K.)
Case: At the end of the cancellation of the appeal case between the parties, the decision made by the local court regarding the acceptance of the case was appealed by the defendants within the legal period, the file was examined, the report of the Examination Judge … was read, his explanations were listened to, Decisively discussed and considered;
Decision: The case is related to the request for cancellation of the objection made to the enforcement proceedings initiated for the collection of the ecrimisil receivable.
The plaintiff, the owner of the immovable property subject to the lawsuit, which he acquired on 21.08.2008, a total of 26.500, 00 TL due to the unfair use of the defendant.stating that the notice for paying the lik ecrimicillin was notified to the defendants, enforcement proceedings were initiated upon non-payment of the debt, the proceedings stopped upon the objection made by the defendants to the proceedings, the objection was unjustified, the defendants paid … 37. 2013/19755 E of the Enforcement Directorate. with the cancellation of his objection to the numbered follow-up, he requested that the executive denial compensation be decided not to be lower than 40%.
The defendants defended the dismissal of the case by stating that the immovable property subject to the case is the family residence.
The court accepted the case on the grounds that the allegation was proven and the defendants … 37. It was decided to cancel the objections of the Enforcement Directorate in the follow-up file numbered 2013/19755 and to collect 40% of the execution denial compensation from the defendants over the receivable with the continuation of the follow-up and to give it to the plaintiff.
From the contents of the file and the evidence collected; the real estate No. 65 parcel of land that is the subject of contention was registered in the title deed on behalf of … on 21.08.2008, the plaintiff notified the defendants to prevent the seizure and pay paying Decriminalization due to the occupation of the real estate, upon non-payment … 37. Executive Directorate of the Main numbered 2013/19755 file against the defendants 21.09.2008 – 21.02.2013 period of 27.000,00 TL 6.405 will receive adequate payment,41, committed TL total interest 33.405,41, TL is initiated enforcement proceedings for the collection of debt ilamsiz where, over the objection of the defendant is understood to have decided to stop tracking on 06.08.2013.
It should be noted immediately that; There is no impropriety in ruling on the award by determining that the intervention made by the defendants was not based on a justified and valid reason.
Rejection of the defendants’ appeals in this direction, since their appeals are not considered on the spot.
As for the other appeals of the defendants;
As is known, the need in teaching both judicial and adequate payment as set forth in the application, in other words, compensation for wrongful occupation, zilyet non-Malik, malik, non-twisted zilyet can request compensation from that, the decision to merge 08.03.1950 No. 22/4 date case law, fuzuli’s occupation that he created to fit together with the sides of their will cannot be likened to a lease contract, unjust occupation should be regarded as an unfair action by nature that would have to be compensated due to the losses it was emphasized that. Since ecrimisil is a special form of damage relief that is qualified as compensation for unfair occupation, the least of it is damage in exchange for rental income. Therefore, it determines the scope of ecrimicillin in the form of obsolescence as a result of normal use arising from unfair occupation and positive harm caused by use, as well as the benefit (negative harm) that the owner or possessor is deprived of. Unjust occupation is an unjust act. (YHGK 25.02.2004 day and 2004/1-120-96 According to the Decision of the Court of Cassation dated 25.05.1938 and numbered 29/10 on the Unification of Case Law and the settled case law of the Court of Cassation on the same path, criminal cases are subject to a five-year statute of limitations, and this five-year period begins to process backwards from the date of the case.
On the other hand, the ecrimisil account is a matter requiring expertise, and the amount of unfair occupation compensation should be determined by conducting an exploration and examination with the help of an expert in accordance with the nature of the real estate and adhering to the request. The expert report received should be based on concrete information and documents, should be open to the supervision of the parties and the judge, and the reasons for the assessment should be based on scientific data and 266 et seq. of the CCP. it is necessary to explain it in accordance with its articles.
For this reason, if there is a demand on the basis of rent in land and buildings, precedent lease agreements should be requested from the parties, a concrete comparison of the precedent with the immovable property subject to the lawsuit should be made, superior or incomplete parties should be Deciphered.
In principle, in determining the premium on rental income, the rental money that the real estate can bring in free terms in its current form in the first period subject to litigation is determined according to the fair value in the region by comparing it with precedent lease agreements, taking into account the size, nature and environmental characteristics of the real estate. The ecrimisil value for subsequent periods is assessed not less than the amount to be found by reflecting the entire PPI increase rate to the amount determined for the first period.
As for the concrete incident, there is no way to say that the method of calculating the reward is in accordance with the procedure in the expert report, which is based on the judgment of the court.
Namely, in the expert report based on the judgment, the monthly rental price for all months in terms of the requested period was taken as a fixed amount of 500.00 TL, and it was understood that the result was reached without following the method described above.
On the other hand, considering that the ecrimisil receivable, which is in the nature of unfair occupation compensation, is not a liquid receivable, it is also wrong to decide to accept the claimant’s demand for executive denial compensation, while it should be decided to reject it.
As such, as explained above, it is not correct to determine the rental money that the real estate subject to the lawsuit can bring in free terms in the first period in its current form, to rule on the amount to be determined by applying the full PPI increase rate to the amount determined for the first period in terms of subsequent periods, and to decide on the refusal of the claimant’s request for executive denial compensation, while it should be decided in writing with an erroneous assessment.
Conclusion: With the acceptance of the appeals of the defendants on the spot, the provision (provisional 3 of the Law No. 6100. article 428 of the HUMK No. 1086). it was unanimously decided on 08.01.2018 that it should be overturned in accordance with the article and that the advance fee received should be returned to the appellant.
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