EN SUPREME COURT
Law Office
Originally: 2016/8735
The Verdict: 2016/10148
Decision Date: 27.06.2016
LOAN ACTION – THE IMPOSSIBILITY OF DISCUSSING AND JUSTIFYING THE ISSUES THAT CANNOT CLAIM THESE FEES IN THIS CASE, THE INABILITY TO MAKE AN APPLICATION BECAUSE IT DOES NOT OBJECT TO THE EVALUATION REPORT
SUMMARY: It was not found out whether the irrigation well costs that were not taken into account during the valuation made in the sales file by the court also increased the value of the real estate, it was not justified whether the plaintiff, who did not object to the valuation report determined in this way, could claim this price in this case.
(4721 SK Md. 684)
Trial and Decision: As a result of the court’s Decrees on the receivable case between the parties, the defendant’s attorney and the defendant’s appeal, within the period of the judgment on the partial acceptance of the case; after the decision on the acceptance of the appeal petition, the necessary evaluation was made by reading the document in the file after the decision was made:
The plaintiff’s attorney stated in the lawsuit that the real estate in which the parties are 1/3 partners was sold as a result of the partnership liquidation case, the plaintiff planted walnut, pear, mandarin, plum, fig, quince, pomegranate, apricot, olive, grape, mulberry, poplar trees, drilled a water well, laid pipes on the real estate, installed submersible pumps and motors, built a house, animal shelter, outbuildings; useful mandatory expenses are 60.000,00.-Claiming that it is TL; that the price of the real estate sold as a result of the settlement of the partnership was paid equally, and that the defendants became rich for no reason; reserving his rights regarding the surplus, he requested and sued for a decision to be made on the collection of 20.000,00 TL from the defendants together with the legal interest he would receive.
Defendant … his attorney, with an answer petition; requested the dismissal of the case.
The defendant… stated in his statement given during the discovery that the plaintiff planted fruit trees, cultivated, built an animal dam, drilled; the house was built by his uncle.
The court; partial acceptance of the case, payment of TL 9.163,36 from the defendant to the plaintiff with the legal interest payable from 27/09/2011, rejection of the claim for the excess of the trial date, granting of TL 9.163,36 to the plaintiff, receipt of the lawsuit date from the defendant with the legal interest due from 27/09/2011, rejection of the claim for the excess; the verdict was appealed by the defendant’s attorney and the defendant within its term.
Lawsuit relates to the claim for collection of the alleged beneficial and compulsory expenses made by the plaintiff from other stakeholders in accordance with the unjust enrichment rule for the immovable property subject to the lawsuit. Dispute, which is the subject of the appeal, is centered on whether the defendants enriched themselves unfairly against the plaintiff.
From the information and documents contained in the file, He has filed a lawsuit for the elimination of his partnership with … against … in relation to the immovable property subject to the lawsuit. The plaintiff filed the wrongful earnings lawsuit on 27/09, it was determined as TL, this figure was written as the estimated price in the auction announcement, the real estate was 116.500,00 out of the lawsuit on 30/05/2011.- It is understood that it was sold by auction with a price of TL. / it is understood that it was opened in 2011.
In the additional report prepared by the expert agricultural engineer who participated in the discovery, the discovery was made by the court; the value of the trees is 7.050,00.Oct.-TL, irrigation well expenses are 15,000.00.-TL, and your expenses related to trees are 1.190,10.-It has been determined that TL. He stated that it was determined as 4.250,00 TL, this value was taken as a basis, the plaintiff invested a total of 27.490,10 TL (the sum of the value specified in the additional report and the value of the animal roof) in October. This figure was divided into three, one third of which was left to the plaintiff, and it was decided to pay the rest by the defendants.
According to the unjust enrichment rules, the moment of impoverishment and enrichment must occur in order to be able to claim receivables. Unjust enrichment takes place on the date of the sale and the paying of the sale price through the termination of the partnership. As a rule, if an increase in the sale price of the real estate has occurred due to contingent and beneficial expenses incurred by the defendants on the real estate, the plaintiff may request the amount of this increased value falling to the defendants’ shares in accordance with the unfair enrichment rules.
In the concrete case, the immovable property subject to the lawsuit was sold to a non-plaintiff along with the items on it, and the sale price was distributed Decently between the plaintiff and the defendants (TL 35,853.01 each). The plaintiff will then be able to claim the expenses of the real estate from the defendants, who are other stakeholders in accordance with the unjust enrichment provisions.
The plaintiff, due to the beneficial expenses incurred on the immovable property,
according to your request; The way to be followed in calculating unjust enrichment by the court is as follows: the actual version value to be obtained from the sale of the real estate on the auction day and under the same conditions should be determined separately in cases where the plaintiff’s benefit expenses made through an expert witness have been made, and the value to be obtained in this way should be determined.
When there is a difference, they should be proportioned to each other, this ratio should be applied to the sales price made by tender, the amount of reflection of the expenses made by the plaintiff on the tender price should be determined, and the amount falling to the share of the defendants from this amount should be determined. Otherwise, if it is understood that there is no difference between the values determined if the expenses were made and the values determined if they were not made, the case should be dismissed on the grounds that the expenses have no effect on the sale price and therefore the Decriminalized enrichment of the defendants due to these expenses does not exist.
In addition, it is understood that the valuation report contained in the sales file of the real estate subject to the lawsuit calculates the value of the land, tree, house and roof, the total value found is written as the estimated price in the tender announcement, and the irrigation well expenses are not included Decently in this report. It was also deemed inappropriate whether the irrigation well expenses that were not taken into account in the valuation made in the sales file by the court also increased the value of the real estate, and whether the plaintiff, who did not object to the valuation report determined in this way, could claim this amount in this case.
Conclusion: Regardless of the principles described above, it is believed that the written decision is erroneous, the appeals are valid for these reasons, the decision is 428 of the HUMK. it was unanimously decided on 27.06.2016 that he should be PUNISHED MORE than in accordance with the article and that the appeal fee should be returned to the plaintiff if requested.