EN SUPREME COURT
Law Office
Based on: 2015/15450
The Verdict: 2016/2543
Decision Date: 01.03.2016
OPENING A CASE FOR CANCELLATION AND REGISTRATION OF THE SALE – THE DECISION TO DECIDE ON THE PRINCIPLE OF THE SALE, WHEN THE COST OF SALE IS REGISTERED IN THE PROPERTY REGISTER, THE VALIDITY AND PROMOTION OF THE SALE ARE REGISTERED ON BEHALF OF THE APPLICANT
SUMMARY: TMK’s 732. according to the article, the right of preemption is a right that can be used together with the sale of the share, and it is not sufficient to conclude a sales contract for the exercise of this right. The sale becomes valid and publicly accessible with the registration of the immovable property to the title deed. Since the plaintiffs filed this lawsuit on 11.12.2013 after the date of registration of the share in question on behalf of the defendant on 12.12.2011, the two-year reduction period specified in Article 733 / last of the TMK has not passed. Although the court should have decided on the merits of the case by taking into account the above-mentioned issues, the rejection of the reasoned case was not considered correct, and the judgment had to be overturned for this reason.
(4721 SK Md. 705, 733, 1022)
At the end of the hearing conducted by the plaintiff’s attorney, upon the request for cancellation of the title deed and registration filed against the defendant on 11.12.2013 and due to the preliminary; After the Supreme Court requested a decision to dismiss the case dated 21.04.2015, the plaintiff’s attorney decided to reject the appeal petition, which was apparently granted on time due to the fact that the request for a hearing less than the value determined for the pending cases was the cost of the case, the file and all the documents in it were examined and deemed necessary:
The plaintiffs claim that the share subject to the lawsuit was registered on behalf of the defendant, in which they themselves are stakeholders of the lawsuit .. claiming that the parcel numbered immovable property was opened based on the pre-sale agreement with the previous non-litigation stakeholder, the other shares were acquired through sale, no notification was made, they requested the registration of the share on their behalf due to the right of pre-sale.
The defendant defended the dismissal of the case by arguing that the time limit for reducing rights had passed, that there was a de facto division in question, that he had acquired some shares through clearing.
court dismissed the case on the grounds that the statute of limitations had expired.
The decision was appealed by the plaintiff’s attorney.
The case relates to the request for cancellation of the title deed and registration due to the right of preemption.
right of preemption is a right that gives other stakeholders the right to purchase this sold share first of all if a stakeholder sells its share in real estate partially or completely to a third party in real estate subject to the provisions of shared ownership. This right arises with the establishment of a joint ownership relationship and becomes available with the sale of shares.
In the concrete dispute… ownership of the share of the immovable property parcel number subject to dispute, 1. 2009/556 E of the Court of First Instance. and 2010/563 K. it was won with the numbered decision and this decision was finalized on 02.11.2011. The execution of the said provision was made on 12.12.2011 and the share was registered on behalf of the defendant.
Registration is mandatory for the birth of rights in kind. Unless registration is made in the nature of innovation, the real right cannot be disposed of and cannot be owned by the public.
According to Article 705/1 of the TMK, “The acquisition of immovable property takes place with registration.”
According to Article 705/2 of the TMK; In cases of inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated by law, immovable property is acquired before registration. However, in these cases, the ability of the owner to save depends on the registration of the immovable property in the land registry.
TMK’s 1022/2. the article states that the effect of registration will begin on the date of entry into the journal. If the property right is registered in this way, it becomes public and can be brought forward against anyone.
“…it should be noted immediately that registration is essentially a requirement for the acquisition of real estate under Turkish Law. As a matter of fact, 705 of the Turkish Civil Code No. 4721. according to the article, the acquisition of real estate takes place through registration.
On the other hand, the principle of registration is not absolute in Turkish Law. In the presence of certain legal reasons, the ownership of the real estate is transferred and acquired even before the registration is made. However, in order to mention the exception to the registration principle, this exception must be stipulated by law. Cases of acquisition of real estate without registration are 705/2 of TMK. in Articles 54, 105 and 599 of the same Law. 151 of the Turkish Commercial Code numbered 6762, which has been partially abolished with its articles. it is shown in the article. TMK’s 705/2. according to the article; “In cases of inheritance, decree, forced execution, occupation, expropriation and other cases stipulated in the law, the property is acquired before registration. However, in these cases, the ability of the owner to save depends on the registration of the immovable property in the land registry.
According to Article 705/1 of the Turkish Civil Code, property is acquired before registration in cases of inheritance, court decision, forced execution, occupation, expropriation. In this case, the immovable property is transferred to the new owner together with all its registered or annotated obligations. In unregistered acquisition, provided that it is in good faith
No rights can be asserted against the person who is in the register, that is, this person is also 1023 of the TMK. the provision of the article is applied. A person who acquires property without registration has all the rights and powers of the owner before registration, but these rights and powers cannot be asserted against bona fide third parties unless the property right has been registered in the title deed, because it has not yet been clarified. For this reason, it is of great benefit for this person to register his unregistered property right immediately without delay. The registration made later is only in the nature of a declaration (Jale G. Akipek, Turkish Condominium Ownership Law, Rights in Kind, 2. Book, Property, 2. Printing, Sevinç Printing, Ankara, 1973, p.121-122).
However, savings cannot be made in non-registered acquisitions unless registration is made; because the person who acquires the unregistered real estate does not appear as the owner in the land registry.
As a matter of fact, this issue is 705/2 of the Turkish Civil Code. it is stated in the article as “However, the ability of the owner to save in these cases depends on the registration of the immovable property to the land registry”.
In the concrete case; the plaintiff … the debtors through the attorney …Animal Husbandry Food Agricultural Products Agricultural Tools San and Tic. Ltd. Şti. and… about whether the pursuit has been initiated…. In the enforcement proceedings carried out in the file numbered 2007/3965 E of the Enforcement Directorate; ….In the 2007/346 instruction file of the Enforcement Directorate… from the debtors registered in the parcel…. 8000/12200 shares belonging to his share were requested to be sold by tender; it is understood that the immovable share in question was tendered to the creditor for a price of TL 13,400 during the forced execution on 14.05.2009 and the tender was finalized on 04.09.2009.
Dated 01.11.1972 and 1968/2-869 E of the General Assembly of Law., 1972/891 K . in its decision numbered; 13.03.2002 date and 2002/8-160 E., 2002/191 K . as stated in the numbered decision, filing a lawsuit is a savings transaction, and the plaintiff, who has not been registered in the name of the real estate, does not have the right to file a lawsuit. While the local court should have decided to dismiss the case by taking this issue into account, it is wrong to make a judgment with a wrong discretion …” (Y. HGK 13.11.2013 2013/6-299 E. 2013/1566 K.).
The defendant has acquired a share in the immovable property subject to the lawsuit with a provision to which the plaintiff is not a party. Although the defendant gained the right of ownership on the date of finalization of the judgment, he obtained the right of saving on this share through registration.
If the plaintiff knows that the decision to which he is not a party has been finalized and that the right of preemption is expected according to this situation, the party that won the property right before registration can only obtain the right of saving through registration, 1020 of the TMK. it is contrary to the principle of “openness of the land registry” regulated in the article. In addition, decisions related to registration have a new nature, since they do not contain a performance conviction and can always be executed by the person entitled to registration. In this case, the execution of the provision after the expiration of the deadlines set for preemption in Article 733 / final of the TMK may lead to abuse of the right.
Also TMK’s 732. according to the article, the right of preemption is a right that can be used together with the sale of the share, and it is not sufficient to conclude a sales contract for the exercise of this right. The sale becomes valid and publicly accessible with the registration of the immovable property to the title deed. Since the plaintiffs filed this lawsuit on 11.12.2013 after the date of registration of the share in question on behalf of the defendant on 12.12.2011, the two-year reduction period specified in Article 733 / last of the TMK has not passed.
Although the court should have decided on the merits of the case by taking into account the specified issues, the rejection of the case with a reasoned decision was not deemed appropriate, and therefore the judgment had to be overturned.
Conclusion: For the reasons explained above, it was decided to overturn the judgment by a majority vote on 01.03.2016 upon acceptance of the objections of the plaintiff’s attorneys, to return the paid fee to the depositor if requested within 15 days from the notification of the decision and to provide the possibility of correction.
NEGATIVE VOTE
Since the dispute was transferred to the defendant on the date when the compulsory registration of the immovable right became final after the acquisition of the lower-ranking share as a result of the compulsory registration case, it is collected at the point whether the right of preemption was born on the date when the registration decision became final or on the date of registration of the decision with the land registry and, accordingly, whether there is a two-year deprivation of rights stipulated for filing a lawsuit.
As stated in the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 20.03.2013 and numbered 2012/6-855, numbered 2013/376;
732 of the Turkish Civil Code No. 4721. in the article, “If a partner in common ownership sells his/her share in real estate partially or completely to a third party, other stakeholders may exercise their priority rights.” 734 of the same law. in the article, “The pre-emptive right is used by filing a lawsuit against the buyer. The holder of the pre-emptive right pays the buyer’s sale price and title deed expenses within the limits determined by the judge before the decision is made to register the share on his behalf.
He must deposit it in cash within the time limit to the place to be determined by the judge.” it was said.
As it can be seen, in the relevant articles regulating the “right of pre-sale”, “sale” is always mentioned and it is emphasized that the right of pre-sale is born with the sale of the share. In other words, it is sufficient to establish a valid sales contract in order for the right of preemption to be used, and there is no need to wait for the registration of the share in the title deed on behalf of the defendant. As a matter of fact, the General Assembly of the Supreme Court of Appeals dated 06.02.1957 and 1957/6-1-6 the same point is accepted in the numbered decision.
“The Şuf’ali stock was acquired as a result of the compulsory registration case. There is no obligation to register with the land registry in order to acquire the right of ownership. The case is valid because it was filed within one month from the finalization of the registration notification.” (Supreme Court 6. Law Office 7.7.1994/7426-7710 p. Decision).
“Şuf’a share was sold to the defendant with a voluntary tender dated 14.07.1993. This sale replaces the sales contract made in the presence of the official, and the sales contract is signed with this tender. m. completed in accordance with 225/2. After that, the registration process required for the transfer of ownership is not an element of the completion of the sales contract. The right to Shuf is born with a sales contract.” (Supreme Court 6. Law Office 06.06.1995 n. pp. 5559-5754. Decision). Also similar decisions: Supreme Court 6. Law Department, 21.04.1993 t. 4653-4852, 17.12.1986 t. 12701-1445, 15.01.1986 t. 11822-32 and 10.07.1962 t. 3628-4814 pp. Decision). Source: (Müslüm Tunaboylu – Preliminary Cases, 5. Print s. 237-286).
“…If the share subject to dispute has been acquired by a court decision, the reduction period for the exercise of the right of preemption begins to operate with the finalization of the court decision. Because, according to the provision of Article 705/2 of the Civil Code, with the finalization of the court decision, the property is deemed to have been acquired without the need for registration. Although the court should have decided to dismiss the case in terms of time, the two-year reduction period has passed since the verdict was finalized on the date of the case …” (Court of Cassation 6. Law Department, 13.03.2007 t. 395-2647).
TMK’s 733. in the article, “…The sale is notified to other interested parties by the buyer or seller through a notary.
The right of preemption expires three months from the date of notification of the sale to the rightholder, and in any case two years later. the judgment is contained.
According to the explanations made above, it is sufficient that a valid sale has been made for the right reduction period to start functioning. The buyer or seller informs the other stakeholders about the sale transaction through a notary. If notification is made through a notary public (there is no obligation), the right of preemption case is dropped within three months and in any case within two years from the date of sale. Both in the text of the law and in the case law, the date of registration in the title deed at the beginning of the period is not taken as a basis. The period begins to work together with the sale. registration case filed as a result of the sales promise agreement and share acquisition is also a type of sale.
The court decision replaces the sales contract here. In this respect, the periods specified in the law for the right of preemption should be determined according to the date of finalization of the registration decision. The sub-share was acquired as a result of the compulsory registration case, and there is no obligation to register with the land registry in order to acquire the right of ownership. The case must be filed within three months from the finalization of the registration notification, and in the case of a notice with a warning, in any case within two years.
Considering the finalization date of the registration decision in the concrete case, since the statute of limitations has expired, the court’s decision on the “denial of the case in terms of the reduced time limit” must be upheld.
For the reasons explained, I do not agree with the majority opinion of Mr. President.