TC
JUDGMENT
GENERAL ASSEMBLY OF THE LAW
E.2014/8-1422
K.2015/1107
T.27.3.2015
– REQUEST FOR EVICTION OF THE LEASED IMMOVABLE PROPERTY WITHOUT EXECUTION (COMPLAINT AGAINST THE BAILIFF – COMPLAINANT, it has been annotated on the title deed that the owner of the right of occupancy is a tenant / the right of occupancy has been abandoned in the submitted documents – the court will investigate whether the occupation is justified by subpoenaing the land registry records
– COMPLAINT AGAINST ENFORCEMENT OFFICER (COMPLAINT FOR RELEASE OF THE RENTED PROPERTY WITHOUT ENFORCEMENT BY EXECUTION WITHOUT ENFORCEMENT – THE COMPLAINT IS PROCESSED ON THE DEED THAT THE OWNER OF THE RIGHT OF POSSESSION IS A TENANT) THE COMPANY’S RIGHT TO THE COMPANY HAS BEEN TERMINATED – THE COURT SHALL SUBJECT THE DEED RECORDS AND ASSESS WHETHER THE OCCUPATION IS RIGHTFUL OR NOT BY CONCLUSION)
-THAT THE OCCUPANT IS RIGHTFUL (THE COMPLAINANT DOCUMENTED THAT THE USER OF THE RIGHT OF USE annotated on the TAPE IS THE RENTER – THE COURT FOR ABANDONMENT OF THE RIGHT OF USE IN THE SUBMITTED DOCUMENTS, IT IS NECESSARY TO REQUEST THE EVICTION OF THE LEASED IMMOVABLE PROPERTY THROUGH EXECUTION WITHOUT JUDGMENT WITH THE CONDEMNATION OF THE TITLE DEED RECORDS THAT THE PROFESSION WILL BE EVALUATED. )
– THE POSSESSOR OF THE RIGHT OF POSSESSION IS A TENANT (REQUEST FOR RELEASE OF THE RENTED PROPERTY WITHOUT EXECUTION OF THE RENTED PROPERTY – IN THE DOCUMENTS SUBMITTED, IT IS STATED THAT THE RIGHT OF EXECUTION HAS BEEN TERMINATED / COURT, THE OCCUPATION WILL BE OPENED IMMEDIATELY AND THE RIGHTFULNESS OF THE OCCUPATION WILL BE EVALUATED) REACHING A CONCLUSION BY EVALUATING THE LAND REGISTRY RECORDS AND WHETHER THE TRANSACTION IS RIGHTFUL OR NOT) 2004/M. 18,276
SUMMARY :
The lawsuit is related to the request for eviction of the leased immovable. Although the complainant claims that the owner of the usufruct right specified in the title deed annotation is a tenant with a dealership contract and that he rightfully occupied the immovable subject to eviction and execution with an execution letter, it is understood that the usufruct right has been waived. In the title deed record submitted to the court by the lawyer of the owners of the immovable subject to the lawsuit after the decision correction stage, there is a lease annotation in favor of a company other than the plaintiff.
In this case, since the documents submitted after the reversal decision of the Special Chamber indicate that the usufruct right has been waived, a hearing should be held at the local court in accordance with Article 18/3. The EBL and the said title deed records should be submitted and it should be evaluated whether the complainant’s occupation of the immovable requested to be evicted is justified and a decision should be made according to the result to be reached.
LAWSUIT :
At the end of the trial opened due to the application of the complaint legal remedy; Upon the request of the complainant’s lawyer to review the decision of Antalya 2nd Execution Law Court dated 15.05.2012 and numbered 2012/453 E., 2012/446 K. regarding the rejection of the complaint, the decision was firstly decided by the 8th Supreme Court of Appeals Civil Chamber dated 09.10.2012 and numbered 2012/7929 E.-2012 /8889 K.; Upon the request of the complainant’s attorney for correction of the decision, this time the request for correction was made with the decision of the 8th Civil Chamber of the Court of Cassation dated 25.03.2013 and numbered 2012/15257 E.- 2013/4252 K. The decision was accepted;
.A lawsuit was filed on 16.09.2005 against E… Petrol based on the eviction commitment dated 09.05.2003, which is the subject of the follow-up file. The creditor requested the removal of the objection and evacuation at the Civil Court of Peace. The court decided to continue the proceedings which were suspended upon the objection and ruled for eviction with the decision dated 23.12.2011.
With the dealership agreement dated 08.06.2010, the place was rented from Shell-T… Petrol A.Ş., the usufructuary. The third party filed a complaint for the annulment of the eviction case filed against him due to the usufruct right, and since he was not a party to the decision, the Court decided to dismiss the complaint on the grounds that tenancy is fundamental. stated that there was no personal tenancy right, that he rented the place from T… Petrol A.Ş., the defendant in the decision, and that it was not possible to apply Article 27 of the BEC.
In the enforcement of the eviction decisions of the Civil Court of Peace based on the lease agreement, it is seen that Article 276 of the BEK, which finds application with reference to Article 41 of the BEK, regulates that the eviction will be suspended in the following cases:
A person other than the tenant is present in the place to be evicted and the tenant shows an official document proving that the occupation is justified.
In the concrete case, it is understood that the complainant stated that he was a tenant of Shell-Turcas Petrol A.Ş. and presented the dealership agreement in the official title deed dated 02.04.2003 and numbered 2489 issued at the Land Registry Directorate. also submitted to the execution file; NY, the owner of the immovable and the judgment creditor, established the usufruct right of use of the immovable for fifteen years “personally” or “bilvasıta” to T….Petrol A.Ş. for fifteen years. regarding the sale of fuel service station products on the immovable
In this case, it is understood from the official deed that the complainant was present on the immovable property with the dealership agreement that he rented from Shell-Turcas Petrol A.Ş. On 08.06.2010, he declared that he occupied the immovable property within the scope of the aforementioned article. For the reasons explained, it has been seen that the court decision should be reversed, but it has been approved by our Chamber and the request for correction of the decision of the complainant’s attorney should be accepted…),
The court returned to its place and at the end of the retrial; the court resisted the previous decision.
The General Assembly of Civil Chambers examined the decision and discussed the necessity after it was understood that the objection was filed in due time and the documents in the file were read:
DECISION :
The request is for the annulment of the bailiff’s action. through complaint.
The complainant lawyer stated that T…. Petrol AŞ had a 15-year usufruct right annotation in the title deed records as of 02.04.2003, the company merged with S…. It signed a 5-year Fuel Dealership agreement on 08.06.2010 and an Autogas Dealership agreement on 13.07.2010. In 2010, the company merged with S. Petrol and Shell Turcas A.Ş. stated that it signed a 5-year Fuel Dealership agreement on 08.06.2010 and an Autogas Dealership agreement on 13.07.2010, and that based on these agreements, it took part in the immovable property numbered 7822 block 1 parcel, that it signed a dealership agreement based on these agreements, that the title deed is public, that there is no court decision against his client, and requested the cancellation of the eviction case of Antalya Enforcement Directorate dated 02.05.2012.
As a result of the examination of the file, the court ruled that the complainant’s tenancy is based on the right of personality and that he rented a place from T…. Petrol AŞ, the defendant in the eviction order. It was stated that it was not possible to apply Article 27 of the BEC, the decision was first upheld by the Special Chamber upon the objection of the complainant’s lawyer, and this time, upon the request of the plaintiff complainant’s lawyer to correct the decision, the decision was upheld by the Special Chamber. the decision was reversed on the grounds explained above, and the court decided to resist on the previous grounds.
The decision was appealed by the complainant’s lawyer.
The dispute before the General Assembly of Civil Chambers focuses on whether the plaintiff, who was found to be an occupier of the immovable during the execution of the eviction decision on the basis of the trial and who was not a party to the eviction decision, has a profession. spute is based on a justifiable reason and whether it is necessary to evacuate according to the result to be reached.
In the execution file numbered 2009/18657 of Antalya 2nd Execution Directorate; An eviction lawsuit was filed on 16.09.2005 against E… Petrol Ltd.Şti based on the eviction commitment dated 09.05.2003.
As a result of the evacuation lawsuit filed for the continuation of the proceedings that were suspended upon objection; with the decision of Antalya 2nd Civil Court of Peace dated 23.12.2011 and numbered 2010/930 E.-2011/1871 K., the plaintiff NY filed a lawsuit against the plaintiff NY on 18.11.2005 by the defendant E… Petrol Ltd. and the defendants S…T… Petrol Co. and T… For the evacuation of the immovable rented by the defendants S…T… Petrol AŞ and T… Petrol AŞ on 18.11.2005, the immovable property numbered 7822 block 1 parcel was rented to the defendant by the plaintiff, the plaintiff later transferred the usufruct right to the plaintiff. the third party, the defendant made an evacuation commitment on 09.05.2005
2005, but the leased property was not evacuated, the ownership belonged to the plaintiff and a lease agreement was signed between the plaintiff and the defendant, a lawsuit was filed on 16.09.2005 upon the non-evacuation of the immovable property, and it was decided to accept the lawsuit on the grounds that the evacuation commitment was valid, and the reversal decision was not appealed and became final on 13.04.2012. While evacuating the place of residence for the execution of the decision, the third party complainant C… Kanyon Tur.Tik. Construction.Eng Pet.Ltd. Şti. and the company representative declared that they rented the place from the usufruct holder Shell-Turcas Petrol AŞ with a dealership agreement dated 08.06.2010.The current lawsuit was filed after the Enforcement Directorate gave a 10-day period to vacate the place.
According to the Official Deed dated 02.04.2003 and numbered 2489, the entire 4024 m2 plot of land constituting Block 7822, Parcel 1 is registered in the name of NYNY and the owner has agreed to sell exclusively petroleum products to be purchased from Turcas and not to sell petroleum products belonging to other persons and companies.
The service and service station established on the entire immovable property as a condition of the Dealership Agreement may continue even if the Dealership Agreement is terminated and Turcas is free to exercise this right directly or indirectly. The usufruct right has been established in favor of Turcas Petrol AŞ for a period of 15 years amounting to TL 872,410,000 for a term of 15 years, and all of the establishment fee has been received in cash and in full, and Turcas Petrol AŞ, in whose favor the usufruct right has been established, has accepted the establishment of the usufruct right and the usufruct right has been established in favor of Turcas Petrol AŞ.
In the execution of the eviction orders of the Civil Court of Peace based on the lease agreement, if there is a person other than the tenant in the place to be evicted, the eviction will be stopped if he shows an official document showing that he is justified in the occupation and Article 276 applied with reference to Article 41 of the BEC.
Article 276 of the Bankruptcy and Insolvency Law No. 2004 titled “In the Presence of a Third Person in the Leased Immovable”
“If there is a person other than the tenant in the place where eviction is requested and he cannot show an official document that he is justified in the occupation, this person shall be evicted immediately.
However, if this person cannot show an official document, but declares that he has been residing in that place for some time before the date of the contract submitted to the office and this declaration is confirmed by the investigation to be made by the bailiff at the scene, the officer postpones the eviction and notifies the enforcement court within three days.
The court, after hearing the parties, decides on eviction or decides that one of the parties must apply to the court within seven days. In the event that an application is made to the court within this period, action shall be taken according to the outcome of the case. Provisions of Article 36 shall also apply here. The party who does not file a lawsuit shall be deemed to have waived its claim.
The debtor’s lineage and descendants, husband or wife, relatives by blood or marriage up to the second degree, business partners and other persons who are understood to reside in the residence in relation to the debtor will not be accepted as third parties in the application.
From the provisions of this article.”In the evaluation of the concrete case in the light of the aforementioned legislation; Although the complainant claims that Shell-Turcas Petrol AŞ, the owner of the usufruct right annotated on the title deed on 02.04.2003, is the tenant of Shell-Turcas Petrol AŞ with a dealership agreement and rightfully occupies the real estate in question, eviction and execution by writ of execution, 28. 01.01.2011, it is understood from the title deed given to the court that the right of usufruct was waived and that there is a lease annotation in favor of another company other than the plaintiff.With the decision of Antalya 8th Civil Court of First Instance dated 12.12.2012 and numbered 2012/421-565, after the decision correction stage, the attorney of the owners of the immovable subject to the lawsuit.
In this case, in the face of the fact that the usufruct right has been waived in the documents submitted after the reversal decision of the Special Chamber, a hearing should be opened in the local court in accordance with Article 18/3. The EBL and the title deed records in question should be submitted to the court and it should be evaluated whether the occupation of the complainant C… K… Ltd. Şti. on the immovable property whose eviction is requested is justified and a decision should be made according to the result. reach.
In the discussions held in the General Assembly of Civil Chambers, it was stated that the decision of resistance should be approved since the eviction decision became final, but this opinion was not adopted by the majority of the Board.
For the different reasoning explained above, the decision of resistance should be reversed.
CONCLUSION :
With the acceptance of the objections of the complainant’s attorney, the decision of resistance should be reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is applied with reference to the “Provisional Article 3” added. For the different reasons shown above, the Code of Civil Procedure No. 6100 was applied with Article 30 of the Law No. 6217. It was decided by majority vote on 27.03.2015 not to examine the other objection request made by the plaintiff-complainant’s attorney according to the grounds for annulment for the time being and to return the pre-appeal fee to the administration. custodian upon request.
You can access our other article examples and petition examples by clicking here.