TC SUPREME
1st Civil Chamber
Based on: 2014/11142
Decision: 2016/7262
Date of Decision: June 14, 2016
LAND REGISTRY OFFICER
LAND REGISTRATION CANCELLATION AND REGISTRATION PROCEDURES – THE APPLICABILITY OF JOINT OWNERSHIP PROVISIONS IN DISPUTES AMONG HEIRS AND THE GROUNDS THAT THE SHARE RATIO MAY BE VOLUNTARILY SUBJECT TO LITIGATION – No Ruling to Be Issued Without Examining the Merits of the Case – Moral
SUMMARY:
The court decided to dismiss the case, ruling that the lawsuit filed for cancellation and registration could not be heard due to the legal ground of “lack of jurisdiction,” which must first be examined in light of the claims raised. However, considering that the provisions of Articles 688 and 690 of the Joint Ownership Law No. 4721 apply to disputes among heirs, it is possible to file a lawsuit at will in proportion to one’s share. It is incorrect to issue a written judgment without examining the merits of the case and deciding accordingly.
(Turkish Civil Code No. 6098, Art. 19, 36) (Turkish Civil Code No. 4721, Art. 688)
On Tuesday, June 14, 2016, the day set for the hearing, the attorney acting on behalf of the client and the attorney acting on behalf of the appellant appeared in court. Following the acceptance of the appeal, the oral statements of the attorneys who appeared were heard, and the hearing began. After the decision to accept the appeal was rendered, the oral statements of the attorneys who appeared were heard, and the plaintiffs’ hearing and decision were rendered. It was announced that the hearing had concluded and the matter had been resolved. Conversely, the report prepared by the Review Judge was read and evaluated. The file was reviewed, discussed, and deemed necessary:
.
Th e case concerns a request for the cancellation of land registry entries regarding shares, based on the legal grounds of “lack of legal authorization,” “fraud,” and “fraudulent conveyance.”
The court decided to dismiss the case on the grounds that the lawsuit, filed with a request for the cancellation of the registration regarding the share ratio, could not be heard due to the legal ground of “lack of legal authorization,” which must first be examined in accordance with the claims raised.
However, since the provisions on joint ownership set forth in Articles 688 and 10 of the Turkish Civil Code No. 4721 apply to disputes arising among heirs, it is possible to file a lawsuit regarding the share ratio at any time.
In the specific case, both the plaintiff and the defendant are heirs of the decedent…
In this situation, it is incorrect to render a written decision without first examining the nature of the work and deciding accordingly.
The plaintiffs’ appeal was filed for the reasons explained. In accordance with the attorney fee schedule effective as of December 21, 2015, and pursuant to Article 1.350.00, the plaintiffs, who acted in compliance with this schedule, filed their appeal in accordance with Article 6100 of the Code of Civil Procedure (Transitory Article 3) and the adoption of Article 428 of the Code of Civil Procedure, it was decided by unanimous vote on June 14, 2016, to recover the attorney’s fees from the plaintiff and to refund the advance fees paid to the plaintiff. (¤¤)