TR HIGH COURT
Law Firm
Basis: 2015/15450
Decision: 2016/2543
Decision Date: 01.03.2016
CASE OF CANCELLATION AND REGISTRATION OF THE SALE – DECISION ON THE MERITS OF THE SALE DECISION, WHEN THE GOODS SUBJECT TO SALE ARE FOUND UNDER THE PROPERTY REGISTRATION, THE VALIDITY AND PROMULGABILITY 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 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 provided for 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 stated issues, the reasoned rejection of the case was not found to be correct and therefore the decision was overturned.
(4721 SK Mdlthough the court should have decided on the merits of the case by taking into account the stated issues, the reasoned rejection of the case was not found to be correct and therefore the decision was overturned.
(4721 SK Md. 705, 733, 1022)
At the end of the hearing conducted by the plaintiff’s attorney, after the decision to dismiss the lawsuit filed against the defendant on 11.12.2013 and upon the request for cancellation of the title deed and registration due to the preliminary issue was requested by the Supreme Court on 21.04.2015, the plaintiff’s attorney decided to reject the appeal petition, which was apparently granted on time because the trial request cost was less than the price set for the trial cases, the file and all the documents in it were examined and deemed necessary:
The plaintiffs stated that the share in question was registered in the name of the defendant, and that the case was filed by them as a shareholder ..he plaintiffs stated that the share in question was registered in the name of the defendant, and that the case was filed by them as a shareholder .. claiming that the parcel numbered immovable property was opened based on the pre-sale agreement with the previous non-litigation stakeholder, the other shThe plaintiffs stated that the share in question was registered in the name of the defendant, and that the case was filed by them as a shareholder .. 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.
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.
The decision was appealed by the plaintiff’s lawyer.
Case relates to the request for cancellation of the title deed and registration due to the right of preemption.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 relates to the request for cancellation of the title deed and registration due to the right of preemption.
Thehe court dismissed the case on the grounds that the statute of limitations had expired.
Decision was appealed by the plaintiff’s lawyer.
The case relates to the request for cancellation of the title deed and registration due to the right of preemption.
The right of preemption is a right that grants other stakeholders the right to purchase the 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, the ownership of the disputed share of the immovable property with parcel number… is, 1.he concrete dispute, the ownership of the disputed share of the immovable property with parcel number… is, 1. It was won by the decisie concrete dispute, the ownership of the disputed share of the immovable property with parcel number… is, 1. was won by the decision of the Civil Court of First Instance numbered 2009/556 crete dispute, the ownership of the disputed share of the immovable property with parcel number… is, 1. It was won by the decision of the Civil Court of First IIn 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. 705/2 of the TMK; inheritance, court decision, forced execution, occupation, expropriation and other casesn 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.
Article 1022/2 of the TMK stipulates that the effect of the registration will begin from the date of registration in 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, 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 landupation, expropriation and other cases stipulated in the law, ownership is acquired before registration. In these cases, the owner can 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.
In accordance with Article 705/1 of the Turkish Civil Code, property is acquired before registration in cases of inheritance, court decision, enforcement, occupation and expropriation. In this case, the immovable property is transferred to the new owner together with all its registered or annotated obligations. If it is an unregistered acquisition, provided that it was made in good faith,
No rights can be asserted against the person who is in the register, that is, this person is also TMK 1023. the provision of the article is appliedo rights can be asserted against the person who is in the register, that is, this person is also TMK 1023. the provision of the article is applied.
A person who acquires immovable property without registration has all the rights and powers of the owner before registration, but these rights and powero rights can be asserted against the person who is in the register, that is, this person is also TMK 1023. the provision of the article is applied. A person who acquires immovable property without registration has all the rights and powers of the owner before registration, but these rights and powers cannot be asserted against third parties in good faith unless the ownership right is registered in the land registry, because it is not yet clear.
Therefore, it is of great benefit for this person to register his unregistered property right immediately without delay. Subsequent registration is only declarative in nature (Jale G. Akipek, Turkish Property Law, Rights in Kind, The Second Book, Property, the Second Edition, Sevinç Publishing, Ankara, 1973, p.121-122).Akipek, Turkish Property Law, Rights in Kind, The Second Book, Property, the Second Edition, Sevinç Publishing, Ankara, 1973, p.121-122).
However, savings cannot be made in non-registered acquisitions unless registrAkipek, Turkish Property Law, Rights in Kind, The Second Book, Property, the Second Edition, Sevinç Publishing, 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 … the debtors through the attorney … Animal Husbandry Food Agricultural Products Agricultural Tools San and Tic. Ltd. Şti. and… about the pursuit has been initiatedn the concrete case; the plaintiff … the debtors through the attorney … Animal Husbandry Food Agricultural Products Agricultural Tools San and Tic. Ltd. Şti. and… about the pursuit has been initiated.
During the enforcement proceedings conducted on file 2007/3965 E of the Enforcement Directorate; … Through the instruction file 2007/346 of the Enforcement Directorate … 8000/12200 shares registered in the parcel were requested to be sold by tender; in a forced tender held on 14.05.2009, it is understood that the immovable shares in question were offered to the creditor for a price of 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 the judgment by a majocourt 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 the judgment by a majority vote on 01.03.2016 with the acceptance of the objections of the plaintiff’s attorneys, and to return the paid fee to the addressee with the possibility of correction if requested within 15 days from the notification of the decision.
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 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, “If a partner in common ownership sells his share in real estate partially or completely to a third party, other stakeholders may exercise their rights of preemption.” the judgment is contained32 of the Turkish Civil Code No. 4721. in the article, “If a partner in common ownership sells his share in real estate partially or completely to a third party, other stakeholders may exercise their rights of preemption.” the judgment is contained. 734 Of the same law. in the article, “The right ofthe Turkish Civil Code No. 4721. in the article, “If a partner in common ownership sells
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. 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.
This saleh was sold to h share was sold to the defenshare 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, 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 made above, it is sufficient that a valid sales transaction has been made in order for the right reduction period to start functioning. The buyer or seller informs the other stakeholders about the sale transaction through a notary public.ccording to the explanations made above, it is sufficient that a valid sales transaction has been made in order for the right reduction period to start functioning.
The buyer or seller informs the other stakeholders about the sale transaction through a notary public. If the notification is made through a notary public (there is no obligationccording to the explanations made above, it is sufficient that a valid sales transaction has been made in order for the right reduction period to start functioning. The buyer or seller informs the other stakeholders about the sale transaction through a notary public.
If the notification is made through a notary public (there is no obligation), the right of preemption case is dismissed 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. A registration lawsuit filed as a result of a 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. As a result of the compulsory registration case, the sub-share has been acquired and there is no obligation to register with the title deed in order to acquire the right of ownership.he 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.
As a result of the compulsory registration case, the sub-share has been acquired and there is no obligation to register with the title deed 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, 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.