EN SUPREME COURT
Legal Department
Originally: 2016/3404
The Verdict: 2016/7050
Decision Date: 09.06.2016
PREVENTION OF DELETION, DEMOLITION ACTIONS – WHO OWNS THE FLOODED BUILDING MUST BE DETERMINED WITHOUT DOUBT, AND THE ENTIRE BUILDING MUST STORE ITS VALUE IN COURT
SUMMARY: All records and documents related to the zoning application are brought from the competent authority, Deciphering with a three-person expert committee, including a cadastral engineer expert, which building overflows into the plaintiff’s real estate, who owns the flooded building, shows the application from the expert without leaving any doubt. If it is determined that the entire building has become unusable in case of demolition, appropriate reports and sketches should be taken for examination, and the value of the entire building should be stored in the court teller and decided according to the result, while it is not correct to make a judgment at an erroneous discretion.
(4721 SK Md. 683)
Trial and Decision: At the end of the demolition case, the decision of the local court regarding the partial acceptance of the case and the plaintiff, the defendant and the internal defendant appealed, the file was examined, the Investigation Judge … read the report, listened to the explanations, the requirements were discussed and decided;
The case relates to the demands for the prevention of expropriation of the zoning parcel, its destruction and the determination of the amount of compensation.
Plaintiff claimed that the immovable property numbered 6713 was the informal owner of parcel number 7, that part of the defendant’s house overflowed into the immovable property as a result of the zoning application made in the area where the immovable property is located, that he could not use the immovable property due to the intervention, and that a lawsuit was filed with the request to demolish the flooded structure and determine the amount of compensation arising from the use of the immovable property, and requested that the right to sue be reserved.
The defendant claims that he made the building subject to the lawsuit himself before the zoning application, if the building price is more than the land price, Dec. 18 of the Zoning Law. in accordance with the provision of the article, he defended the rejection of the case by stating that the real estate should be transferred and registered on behalf of tereke, and that the right to use the structure belongs to him if the building fee is not paid.
The court decided to partially accept the case on the grounds that the defendant’s building overflowed with the zoning application, the demolition will not cause exorbitant damage, the cost of the flooded part of the building should be given to the defendants in proportion to their share, there is no legal benefit for the plaintiff to file a claim for compensation, while it is possible to file a claim for detection, the defendants did not cause a lawsuit.
From the contents of the file and the collected evidence, it is understood that the parcel No. 6713 subject to the dispute is registered on behalf of the plaintiff, the defendant does not have any rights arising from registration and ownership, the defendant and the defendant’s daughter, including the defendant, are the owners of the independent section in the neighboring parcel No. 6713, 10, and both properties were formed as a result of the zoning application. it is understood that he transferred his residence No. 2 on parcel 380 to the defendant, including his daughter, through sale on 02.08.1999.
As it is known; except for legal privileges, the ownership of the integral part (integrated part) and, accordingly, the right to save depends on supply. This issue is 684 of the Turkish Civil Code. it is clearly emphasized in the article. However, article 42/c of law No. 6785, which was repealed by law No. l605, and article 18 of the zoning law No. 3194, which is still in force. the article has been changed.
By introducing special provisions into the articles of association, the legal relationship between the structure, which is an integral part (integrated), and the supply has been Decoupled, and in some cases it has been stipulated that building parcels can be created by leaving the location of the structure to someone other than the owner. Dec paid by the relevant parcel owners to the owner of the building, or in the absence of an agreement between them or a lawsuit for the elimination of the partnership, the former owners of these structures shall have the opportunity to use them until the end of the period of use of the structures.
On the other hand, the land owner’s authority to use the real estate personally is limited, and the saving authority over the structure, which is an integral (Decoupling) part, is limited by a special law.
article l0/c of law No. 298l, amended by law No. 3290, has also introduced provisions in the same direction.
As a matter of fact, if a person has built an integral (complementary) part on immovable property belonging to himself or a third party based on a right protected by law, if he has remained in the zoning parcel belonging to the plaintiff as a result of this land zoning application, it is an administrative decision made against his will and will. it cannot be considered defective because it is a situation. For this reason, as stated above, the legislator
He felt the obligation to protect the owner of the building against these latter.
It is not possible to say that an adequate examination and research has been carried out by the court in the concrete case within the framework of the above-mentioned principles.
That is, according to the records in the pre-zoning file, it is fixed that the structure shown by Oct (A) in the attachment of the expert report obtained as a result of the discovery made at the location of the real estate, the defendant and the defendant, including his daughter, are the owners of the rights.
However, from the records and documents in the file, it is understood that the defendant and the internal defendant of the zoning parcel No. 6713, where the flood building is located, are also the owners of independent sections No. 2 on islands (A) and (B).
Since the violation of the real estate in question occurred with the zoning application, which is an administrative saving, and the defendant cannot be said to be defective, there is no doubt that the defendant cannot be prosecuted with disciplinary action, the trial expenses will not be taken from the plaintiff, and the defendant will not be considered malicious due to the outrages caused by the zoning application. On the other hand, the claimant does not have a request for collection of ecrimicil.
For this reason, all records and documents related to the zoning application are brought from the competent authority, and an expert committee consisting of three people, including a cadastral engineer, Deconstructs and determines which building overflowed onto the plaintiff’s land and who owns the flooded building in such a way as to leave no room for doubt. Although a report and sketch appropriate to the examination showing the application must be obtained, if it is determined that the entire building becomes unusable in case of demolition, the plaintiff should be given time to deposit the price at the court teller, and the decision should be made according to the result, because it was written at an erroneous discretion, the judgment is erroneous.
Rejection of the unfounded objections of the plaintiff. The objections of the defendant and the internal defendant are valid in terms of the specified issues. With the adoption of the decision unanimously on 09.06.2016, for the reasons explained (provisional 3 of the Code of Civil Procedure No. 6100. according to Article 428 of the Law No. 1086). according to the article, your sentence is EXTRA …