TURKISH SUPREME COURT
8th Civil Chamber
Case No.: 2014/506
Decision No.: 2014/18999
Date of Decision: 10/23/2014
IN CASES WHERE OWNERSHIP OF THE CONTENT IS DETERMINED – THE CONTENT CANNOT BE SOLD SEPARATELY FROM THE REAL PROPERTY – THE OWNER OF THE CONTENTS IS ALSO REQUIRED TO COMPLY WITH THIS PROVISION IN PROPORTION TO THE BUYER’S SHARE IN THE REAL ESTATE TRANSACTION
SUMMARY:
It is not possible to sell the title deed separately from the real property (land). Indeed, regarding the peach trees in question, since the plaintiff M.A.A. purchased and used this portion and succeeded to the seller’s rights, a decision to accept this claim should have been rendered; the decision to reject it was found to be incorrect.
(Turkish Civil Code Art. 26) (Turkish Code of Obligations Art. 74) (Turkish Code of Obligations Art. 684, 688, 718)
Case: Sh.. A.. and his clients M.. O.. are plaintiffs in the consolidated case. The Court of Appeals, having reviewed the decision of the Buldan Criminal Court of First Instance dated July 19, 2013, No. 353/244, regarding the partial acceptance and partial rejection of the case, requested the determination of various rights between the parties; however, the defendant, through the plaintiff’s attorney in the consolidated case, requested the review of the file during the proceedings; the file was reviewed and deemed necessary:
Decision:
The plaintiff’s attorney summarized the case in the petition; in the case regarding parcel No. 352 before the Criminal Court of First Instance, a joint ownership determination was made for the removal of the property with main number 2011/263, a case file was opened, and through the aforementioned attorney, a high-security system was implemented, including the installation of 500 meters of irrigation piping; the high system costs (concrete poles, wire, iron, labor, and expenses) were covered by the attorney, and the current value determined by the expert was explained on the grounds that improvements were sought.
The defendant-plaintiff in the consolidated case is M.. O.. in the power of attorney petition; the case was filed through Case No. 2011/263 of the Buldan Peace Criminal Court to resolve the co-ownership of the real property consisting of 352 parcels. The trustee has established a high-value mortgage on his own inheritance share. During the hearing, defendant F.. K. requested a ruling that the peach trees located in the portion he actually uses, as well as the high-priority mortgage and interests on the property, belong to the trustee. In his statement during the hearing regarding the main case, he argued that the case should be dismissed.
Defendants S.O. and R.O., in their statements during the hearing, argued that the plaintiff had removed the deed left by Şahin’s father and issued a new one in its place, and that the plaintiff Mehmet Ali had converted the vacant land into a deed, thereby advocating for the dismissal of both cases.
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Defendant M.. A.. stated that the bond in question was established 20 years ago at the location in dispute and that the plaintiff also held a share in it. He indicated that he had nothing to say regarding plaintiff Inc.’s case but explained that plaintiff M.. O. in the consolidated case did not accept the claim, thereby arguing for the dismissal of the consolidated case.
Defendant A.. A..; plaintiff Inc.., although the plaintiff’s son assisted him in the bond matters, the co-plaintiff M.. O.. stated that he had issued the bond in question last year; plaintiff Ş.. A.. accepted the case; the co-plaintiff M.. A.. Ş.. defended the decision to dismiss the case.
According to the court, the partial acceptance of the claim in the main case pertains to the scientific expert report on the real estate parcel numbered A.. in the scientific expert report, and the inclusion of the defendant-plaintiff M. O. in the consolidated case through an appeal in both the main case and the consolidated case. For example, after it was determined that the high-system vineyard located in the area designated as (E) in the scientific expert report for real estate parcel No. 352 belonged to the plaintiff M. O., a decision was rendered rejecting the claim for excess, and a judgment was issued by the defendant-plaintiff M. O. in the consolidated case.
From the perspective of the main case, the defendant-plaintiff in the consolidated case is M..A.. A.. with regard to the review of the attorney’s objections;
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In court, the plaintiff Ş.. argues that, as stated in the plaintiff’s petition, the claim that the necessary expenses were borne by the plaintiff is unfounded, noting that most of these expenses were minimal. The plaintiff claims that the will left by his father A.. belongs to him. Although the court has ruled that he was appointed, the court cannot concur with this view. Namely; based on the evidence gathered and the entirety of the case file; the subject of the case is that the plaintiffs hold a joint ownership right on behalf of the defendants in both the main case and the consolidated case, and the defendant is the property with parcel number 352, registered under the F..K. cadastre, located on the land.
The technical expert report (B) states that the vineyard was constructed, as evidenced by a letter indicating the nature of the plaintiff’s irrigation system. It is observed that A..A., constructed by A..’s father A..A., holds a 1/12 share in the real property in question and is a defendant in both the main case and the consolidated case. Pursuant to Article 26 of the Code of Civil Procedure No. 6100 (Article 74 of the former Code of Civil Procedure), the court is bound by the parties’ claims, defenses, and requests. It is not possible for the court to rule on more than one claim.
In the present case, the plaintiff, Sh.. A.., is the father of A.. A..; and he is also a defendant in both the main and consolidated cases. Although A.. A.. has not filed a case or claim with the court in accordance with due process, the court is required to provide a written justification, and the decision to rule that A.. A.. is the owner is contrary to procedure and law.
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The defendant-plaintiff in the consolidated case is M.. A..A..; regarding the review of his attorney’s objections to the consolidated case;
From the content of the petition and the evidence gathered, it is understood that F. K., who was previously a co-owner of the real property where the peach trees in question are located, filed a lawsuit claiming that the real property planted by the plaintiff M. A.A. belongs to the former co-owner F. K. and that this share was purchased from him. It should be noted immediately that, pursuant to Article 718 of the Turkish Civil Code No. 4721, which pertains to the scope of the right of ownership, the provision stating that the entire share of a thing belongs to its owner implies that real property encompasses both the entire share of the land and the contents of the land.
As also explained in Article 688 of the same Code, in joint ownership, multiple persons hold ownership of every item that has not been physically divided into specific shares. Considering the legal facts outlined above, a person who purchases a share of real property also becomes the owner of the information regarding that share’s proportion. It is not possible to sell the contents separately from the land (property). Indeed, regarding the peach trees in question, since the plaintiff M.A.A. purchased and used this portion and thereby acquired the seller’s rights, a decision of acceptance should have been rendered in this matter; the decision to reject it was found to be incorrect.
Furthermore, it has been established that the vineyards cultivated by the plaintiff Mehmet were planted during the course of the lawsuit and were not of a temporary nature. Although the court considered it incorrect to issue a decision of acceptance regarding the binding agreements mentioned above, the grounds for the violation regarding the plaintiff’s status were not specified.
Conclusion:
The defendant-plaintiff in the consolidated case is M.A.A., and for these reasons, the attorney’s objections are valid. Upon acceptance of the judgment, pursuant to the 3rd Transitional Provision of the Civil Procedure Code No. 6100, in accordance with Article 428 of Law No. 1086, and in compliance with Article 388/4 of the Human Rights Law, and upon the parties’ submission of the relevant provision, there is currently no basis for examining or aggravating other matters (CPC Art. 297/c) and in accordance with Article 440/1 of the Criminal Code, it was decided by unanimous vote on October 23, 2014, that a request for correction of the decision may be filed within 15 days from the date of service of the decision of the Court of Appeals, and that the advance payment of 149.90 TL shall be refunded upon request. (¤¤)