TR HIGH COURT
Law Firm
Case Number: 2015/15448
Decision: 2016/2537
Decision Date: 01.03.2016
REGISTRATION PROCESS – THE PRIORITY Right IS A RIGHT THAT CAN BE USED TOGETHER WITH THE SALE OF SHARES IN ACCORDANCE WITH ARTICLE TMK, AND IT IS NOT ENOUGH TO ESTABLISH A SALES CONTRACT FOR THE EXERCISE OF THIS RIGHT – THE PROVISION MUST BE OVERTURNED
SUMMARY: The case relates to the request for cancellation of the title deed and registration due to the right of preemption. In addition, according to the article of the TMK, the right of preemption is a right that can be used together with the sale of the share, and it is not enough 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 in the land registry. Since the plaintiff filed this lawsuit on the day following the registration of the share subject to the lawsuit on behalf of the defendant, the two-year period of deprivation of rights stipulated in the TMK article has not passed. Although the court should have decided on the merits of the case, the rejection of the case was not found appropriate taking into account the above-mentioned considerations and the judgment was therefore overturned.
(4721 SK mdlthough the court should have decided on the merits of the case, the rejection of the case was not found appropriate taking into account the above-mentioned considerations and the judgment was therefore overturned.
(4721 SK md. 54, 105, 599, 705, 732, 733, 1022)
Case: At the end of the trial by the plaintiff’s attorney, upon the petition filed against the defendant on 11.12.2013, upon the request for cancellation of the title deed and registration due to the preliminary; upon the notification dated 16.02.2016 determined by the plaintiff’s attorney, upon the examination of the Supreme Court’s decision dated 09.04.2015 regarding the dismissal of the case by trial, the plaintiff’s attorney Av.
At the end of the trial by the plaintiff’s attorney, upon the petition filed against the defendant on 11.12.2013, upon the request for cancellation of the title deed and registration due to the preliminary; upon the notification dated 16.02.2016 determined by the plaintiff’s attorney, upon the examination of the Supreme Court’s decision dated 09.04.2015 regarding the dismissal of the case by trial, the plaintiff’s attorney Av. … and the defendant’s attorney Av. … they’ve arrived. The open trial has begun. After the decision, which is understood to have been made during the appeal period, the oral statements of those present were listened to.
The trial is over. The case has been settled. Later, the file and all the documents in it were examined and the necessity was evaluatedLater, the file and all the documents in it were examined and the necessity was evaluated:
Decrees: The plaintiffs filed a request for registration by claiming that the share subject to the lawsuit was registered on behalf of the defendant based on the pre-sale agreement concluded between the previous non-litigation stakeholder of the immovable parcel No. 397 ar, the file and all the documents in it were examined and the necessity was evaluated:
Decrees: The plaintiffs filed a request for registration by claiming that the share subject to the lawsuit was registered on behalf of the defendant based on the pre-sale agreement concluded between the previous non-litigation stakeholder of the immovable parcel No. 397 and the defendant, while the other shares were acquired through sale, no notification was made.
The defendant defended the dismissal of the case by claiming that the time limit for reducing rights had passed, that there had been a de facto installment, that he had received some of the shares through clearing.
The court dismissed the case on the grounds that the statute of limitations had expired.
decision was appealed by the plaintiff’s lawyer.
The case is about the request for cancellation of title deed and registration duesed the case on the grounds that the statute of limitations had expired.
The decision was appealed by the plaintiff’s lawyer.
case is about the request for cancellation of title deed and registrationhe court dismissed the case on the grounds that the statute of limitations had expired.
The decision was appealed by the plaintiff’s lawyer.
The case is about the request for cancellation of title deed and registration due to pre-emption right.
Pre-emption right is a right that grants other shareholders the right to purchase a share that a shareholder has sold, in whole or in part, to a third party, in immovable properties subject to shared ownership provisions. This right arises with the establishment of a joint ownership relationship and becomes available with the sale of shares.
In the concrete dispute, the ownership of the disputed share in parcel number 397 was finalized on 02.11.2011, and the decision of the Civil Court of First Instance is 2009/556 E. the concrete dispute, the ownership of the disputed share in parcel number 397 was finalized on 02.11.2011, and the decision of the Civil Court of First InstanceIn the concrete dispute, the ownership of the disputed share in parcel number 397 was finalized on 02.11.2011, and the decision of the Civil Court of Fin the concrete dispute, the ownership of the disputed share in parcel number 397 was finalized on 02.11.2011, and the decision of the Civil Court of First Instance is 2009/556 E., 2010/563 K. it was won by a numbered decision. 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 acquisition of real rights. Real rights cannot be disposed of or expropriated unless they are registered as innovative.
Article 705/1 of the Turkish Civil Code according to the article; “The acquisition of immovable properties is registered.”
In accordance with Article 705/2 of the TMK; inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated in the law, real estate 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 provision of registration will begin from the date on which it is recorded in the ledger. If the property right is registered in this way, it becomes public and can be brought forward against anyone.MK’s . the article states that the provision of registration will begin from the date on which it is recorded in the ledger. 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, in Turkish Law, registration is essential for the acquisition of immovable property. In fact, according to Article 705 of the Turkish Civil Code No. 4721, the acquisition of immovable property occurs through registration.
On the other hand, the registration principle in Turkish Law is not absolute. In the presence of certain legal reasons, the ownership of the immovable is transferred and acquired before the registration is made. However, in order to talk about an exception to the registration principle, this exception must be foreseen byn the other hand, the registration principle in Turkish Law is not absolute. In the presence of certain legal reasons, n the other hand, the registration principle in Turkish Law is not absolute. In the presence of certain legal reasons, the ownership of the immovable is transferred and acquired before the registration is made. However, in order to talk about an exception to the registration principle, this exception must be foreseen 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 is partially and partially repealed in its articles. it is shown in the article. TMK’s 705/2. according to the article; “Inheritance, judgment, enforcement, occupation, expropriation and other cases stipulated in the law, ownership is acquired before registration. However, in these cases, the owner can only dispose of the property if it is registered in the land”Inheritance, judgment, enforcement, occupation, expropriation and other cases stipulated in the law, ownership is acquired before registration. However, in these cases, the owner can only dispose of the property if it is registered in the land registry.
Article 705/1 of the Turkish Civil Code. inheritance in accordance with the article
In cases of foreclosure decision, forced execution, occupation, expropriation, the property is acquired before registration. In this case, the immovable property passes to the new owner together with all its registered or annotated burdens.n cases of foreclosure decision, forced execution, occupation, expropriation, the property is acquired before registration. This case, the immovable property passes to the new owner together with all its registered or annn cases of foreclosure decision, forced execution, occupation, expropriation, the property is acquired before registration. In this case, the immovable property passes to the new owner together with all its registered or annotated burdens.
Provided that there are good intentions, no rights can be asserted against a person who receives unregistered earnings, that is, this person is also subject to Article 1023 of the TMK. the provision of the article is applied. A person who acquires real estate 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, since the ownership right has not yet been clarified unless it has been registered in the title deed. For this reason, it is of great benefit for this person to register his unregistered property right immediately without delay.
Subsequently, registration is only in the nature of a declaration (Jale G.or this reason, it is of great benefit for this person to register his unregistered property right immediately without delay. Subsequently,For this reason, it is of great benefit for this person to register his unregistered property right immediately without delay. Subsequently, registration is only in the nature of a declaration (Jale G. Akipek, Turkish Property Law, Rights in Kind, The Second Book, Property, the Second Edition, Sevinç Publications, Ankara, 1973, p.121-122).
However, savings cannot be made in non-registered acquisitions unless registration is made. Because the person who acquires the immovable property without registration 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’s attorney for İş Bankası stated that the debtors are Öz Aksarihanlar Hayvancılık Gıda Tarım Ürünleri Zirai Aletler San ve Tic Ltd. Şti. and U.n the concrete case, the plaintiff’s attorney for İş Bankası stated that the debtors are Öz Aksarihanlar Hayvancılık Gıda Tarım Ürünleri Zirai Aletler n the concrete case, the plaintiff’s attorney for İş Bankası stated that the debtors are Öz Aksarihanthe concrete case, the plaintiff’s attorney for İş Bankası stated that the debtors are Öz Aksarihanlar Hayvancılık Gıda Tarım Ürünleri Zirai Aletler San ve Tic Ltd. Şti. and U. S.
In the enforcement proceeding initiated against him and conducted in the file numbered 2007/3965 of the Izmir 8th Enforcement Directorate, the Akhisar 2nd Borrower Ü. in the 2007/346 instruction file of the Enforcement Directorate, registered in parcel 725. S.It was requested that 8000/12200 shares of In the compulsory tender held on 14.05.2009, the creditor of the immovable property in question was İş Bankası A.Ş.In the compulsory tender held on 14.05.2009, the creditor of the immovable property in question was İş Bankası A.Ş.it is understood that it was tendered to 13.400 TL and the tender was finalized on 04.09.2009.
Supreme Board of Justice, 01.11.1972 date and 1968/2-869 E., 1972/891 K.upreme Board of Justice, 01.11.1972 date and 1968/2 , 1972/891 upreme Board of Justice, 01.11.1972 date and 1968/2-869 E., 1972/891 K. with the decision numbered; 13.03.2002 dated 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 shouldupreme Board of Justice, 01.11.1972 date and 1968/2-869 E., 1972/891 K. with the decision numbered; 13.03.2002 dated 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 inappropriate to establish a verdict with a wrong discretion …” (Y. HGK 13.11.2013 2013/6-299 E. 2013/1566 K.).
The defendant acquired a share in the immovable property in question in a judgment to which the plaintiff was not a party. Although the defendant acquired the right of ownership on the date the judgment became final, he/she acquired the right to dispose of this share through registrationefendant acquired a share in the immovable property in question in a judgment to which the plaintiff was not a party. Although the defendant acquired the right of ownership on the date the judgment became final, he/she acquired the right to dispose of this share through registration.
The plaintiff must know that the judghe defendant acquired a share in the immovable property in question in a judgment to which the plaintiff was not a party. Although the defendant acquired the right of ownership on the date the judgment became final, he/she acquired the right to dispose of this share through registration. The plaintiff must know that the judgment to which he is not a party has become final and that the pre-emption right is expected accordingly, and that the party who has acquired the real estate right before registration can only obtain the right of disposition through registration, in accordance with Article 1020 of the TMK. it is contrary to the principle of “openness of the land registry” regulated in the article.
Moreover, since the decisions regarding registration have a new character, they do not involve a conviction for performance and can always be executed by the person who is entitled to the registration.oreover, since the decisions regarding registration have a new character, they do not involve a conviction for performance and can always be executed by the person who is entitled to the registration. In this case, the execution of the decision after the expiration of the pre-approval period stipulated in Article 733 / final of the TMK may lead to the abuse of the right.
In addition, in accordance with Article 732 of the TMK, the pre-emption right is a right that can be exercised together with the sale of the share, and it is not sufficient to make a sales contract for the exercise of this right. The sale becomes valid and public when the immovable is registered in the land registryn addition, in accordance with Article 732 of the TMK, the pre-emption right is a right that can be exercised together with the sale of the share, and it is not sufficient to make a sales contract for the exercise of this right.
The sale becomes valid and public when the immovable is registered in the land registry. Since the plaintiffs filed this lawsuit on 11.12.2013 after the date of registration of the share subject to the lawsuit 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 written justification was not found correct and the judgment should therefore be overturned.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 written justification was not found correct and the judgment should therefore be overturned.
Conclusion: For the reasons explained above, it was decided to overturn thethough the court should have decided on the merits of the case by taking into account the specified issues, the rejection of the case with written justification was not found correct and the judgment should therefore be overturned.
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, whether the registration decision of the right of preemption was finalized or whether the decision was born on the date of registration with the land registry, and accordingly, the two-year period of deprivation of rights prescribed for filing a lawsuit is collected at the point when the period has elapsed.
the dispute was transferred to the defendant on the date when the compulsory registration of the immovable right became final after the acquisition of 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, whether the registration decision of the right of preemption was finalized or whether the decision was born on the date of registration with the land registry, and accordingly, the two-year period of deprivation of rights prescribed for filing a lawsuit is collected at the point when the period has elapsed.
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, “P
If a partner with a monthly ownership sells his share in the immovable property, in whole or in part, to a third party, the other shareholders can exercise their pre-emption rights.” In Article 734 of the same law, it is stated that, “The pre-emption right is exercised by filing a lawsuit against the buyerpartner with a monthly ownership sells his share in the immovable property, in whole or in part, to a third party, the other shareholders can exercise their pre-emption rights.” In Article 734 of the same law, it is stated that, “The pre-emption right is exercise
As can be seen, the relevant articles regulating the “preemptive right” always mention “sale” and emphasize that the preemptive right arises with the sale of the share.s can be seen, the relevant articles regulating the “preemptive right” always mention “sale” and emphasize that the preemptive right arises with the sale of the share.
In other words, in order to exercise the pre-emptions can be seen, the relevant articles regulating the “preemptive right” always mention “sale” and emphasize that the preemptive right arises with the sale of the share. In other words, in order to exercise the pre-emption right, it is sufficient to establish a valid sales contract and there is no need to wait for the share to be registered in the title deed in the name of the defendant. As a matter of fact, the same issue, the General Assembly of the Supreme Court of Appeals dated 06.02.1957 and 1957/6-1-6 it is also accepted in the numbered decision.
“The Shuf’ali share was acquired as a result of a compulsory registration case. There is no obligation to register in the land registry in order to acquire the right of ownership. The case was filed within one month from the finalization of the registration notification, so it is timely.” (Supreme Court 6thThe Shuf’ali share was acquired as a result of a compulsory registration case. There is no obligation to register in the land registry in order to acquire the right of ownership. The case was filed within one month from the finalization of the registration notification, so it is timely.” (Supreme Court 6th Law Office 7.7.1994/7426-7710 p. Decision).
“The Shuf’a share was sold to the defendant through a voluntary offer dated 14.07.1993. sale replaces the sales contract made in the presence of an official and the sales contract is replaced by this offer,ThThe Shuf’a share was sold to the defendant through a voluntary offer dated 14.07.1993.
This sale replaces the sales contract made in the presence of an official and the sales contract is replaced by this offer, in accordance with the TurkisThe Shuf’a share was sold to the defendant through a voluntary offer dated 14.07.1993. saleh was sold to h share was sold to the defenshare was sold to the defendant through a voluntary offer dated 14.07.1993. This sale replaces the sales contract made in the presence of an official and the sales contract is replaced by this offer, in accordance with the Turkish Commercial Code. m. It is completed in accordance with 225/2. The registration process required for the transfer of ownership is not an element of the completion of the sales contract.
The right of preemption arises with the sales contract.” (Supreme Court 6th Legal Department 06.06.1995 n. 5559-5754 p. Decision). Also similar decisions: Supreme Court 6th Legal 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 p. Decision). Source: (Müslüm Tunaboylu – Preliminary Cases, 5. Print s. 237-286).sion). Source: (Müslüm Tunaboylu – Preliminary Cases, 5. Print s. 237-286).
“…If the share subject to the lawsuit has been won by a court decision, the reduced period for the exercise of the right of preemption begins to operate with the finalization of the court decision. Because, in accordance with the provision of Article 705/2 of the Civil Code, with the finalization of the court decisiecision). Source: (Müslüm Tunaboylu – Preliminary Cases, 5. Print s. 237-286).
“…If the share subject to the lawsuit has been won by a court decision, the reduced period for the exercise of the right of preemption. Source: (Müslüm Tunaboylu – Preliminary Cases, 5. Print s. 237-286).
“…If the share subject to the lawsuit has been won by a court decision, the reduced period for the exercise of the right of preemption begins to operate with the finalization of the court decision. Because, in accordance with 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. When the case was filed, the court should have dismissed the case on the grounds of time, because the two-year statute of limitations had passed from the date the verdict became final…” (Supreme Court 6th Civil Chamber, 13.03.2007 395-2647).
TMK’s 733. in the article, “…The sale is notified to other stakeholders by the buyer or seller through a notary.
TMK’s 733. in the article, “…The sale is notified to other stakeholders 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 above, in order for the limitation period to start running, it is sufficient for a valid sales transaction to have been made. The buyer or seller notifies the other stakeholders of the sales transaction through a notaryccording to the explanations above, in order for the limitation period to start running, it is sufficient for a valid sales transaction to have been made. The buyer or seller notifies the other stakeholders of the sales transaction through a notary public.
If the notification is made through a notary (it isccording to the explanations above, in order for the limitation period to start running, it is sufficient for a valid sales transaction to have been made. The buyer or seller notifies the other stakeholders of the sales transaction through a notary public. If the notification is made through a notary (it is not mandatory), the pre-emptive right case is dismissed within three months and in any case within two years from the sale. Neither the text of the law nor the case law takes the date of registration in the land registry as the starting point of the period.
The period begins to work together with the sale. A registration lawsuit filed as a result of a sales promise agreement and share acquisition is also a type of sale. The court decision here replaces the sales contract. In this respect, the periods specified in the law for the pre-emption right should be determined according to the date of finalization of the registration decision. As a result of the compulsory registration case, a lower share has been acquired and there is no obligation to register in the land registry in order to acquire the ownershiphe court decision here replaces the sales contract.
In this respect, the periods specified in the law for the pre-emption right should be determined according to the date of finalization of the registration decision. As a result of the compulsory registration case, a lower share has been acquired and there is no obligation to register in the land registry in order to acquire the ownership right. 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, within two years.
Considering the finalization date of the registration decision in the concrete case, the court’s decision to “dismiss the case for a reduced period of time” should be upheld because it is in accordance with the law and case law.
For the reasons explained, I do not agree with the majority opinion of Mr. President.