EN SUPREME COURT
Legal Department
Originally: 2015/3581
The Verdict: 2016/7039
Decision Date: 09.06.2016
ECRIMISIL STATUS – SITUATIONS THAT WILL BE REQUIRED TO BE REALIZED FROM THE TERMS OF USE FOR IMPROVEMENTS – DETERMINATION OF THE ACTUAL USE THAT CONNECTS ALL STAKEHOLDERS IN THE CONTRACTOR’S REAL ESTATE WHERE THE 3-STOREY BUILDING IS LOCATED,
SUMMARY: Except for the exceptions counted in respect of the immovables subject to the lawsuit, the realization of the prohibition of use condition will be sought and the claim that the prohibition of use condition has been realized can be proved with any kind of evidence. It has not been revealed whether the actual use of the property that connects all stakeholders has been realized, if it has, who or whose shares are used by and by the part that is the subject of the lawsuit, if it has not, whether there is a place that the plaintiff can benefit from, whether there is an empty apartment in the real estate. For this reason, it has been decided to overturn the judgment.
(K No. 4721. Md. 995) (YHGK 27.02.2002 T. 2002/3-131 E 2002/114 K.)
Case and Decision: At the end of the Decriminalization case between the parties, the local court decision on the acceptance of the case was appealed by the defendant within the legal period, the file was examined, the report of the Investigating Judge was read, his explanations were listened, the need was discussed and evaluated;
The case is related to the request for ecrimicil.
Plaintiffs, who claimed that the immovable property numbered 4802 parcel, which is owned by the heirs, has been used by the defendant heir for a long time, has not been paid in exchange for their shares, claimed that they could not get results even though they had received a warning and requested that a decision be made with ecrimisil.
The defendant argued for the dismissal of the case.
Court decided to accept the case due to the fact that the amount you will receive is fixed.
The title deed of the immovable property in the 4802 parcel 14 ada parcel, where there is a 3-storey building without condominium or floor easement, is registered in the name of the plaintiff, whose death was registered on behalf of the heir of the immovable property subject to the lawsuit …, is registered in his name. Defendant … is fixed in the immaterial manner in which it was transferred to his name and is out of the case ….
It should be noted immediately that the parties have stakeholders in the real estate subject to the lawsuit. A stakeholder who cannot benefit from real estate in shared ownership may always request blocking and/or compensation from other stakeholders or stakeholders who prevent the acquisition of his/her share. If it is a joint ownership, one of the stakeholders may file a lawsuit against the partners who prevent them from benefiting from the joint real estate alone without obtaining the consent of the other stakeholders or appointing a representative to the heritage company.
However, if there is a place that that stakeholder uses without dispute in exchange for his share, there is no way that the criminal lawsuit filed by that stakeholder can be heard. According to the established case law of the Court of Cassation and scientific opinions in the same direction, the problem of a stakeholder who claims to use less space than his share should be solved by filing a case for the dissolution of a division or partnership that has a final result through sale.
As a rule, stakeholders cannot seek compensation from each other unless it is prohibited. The realization of the condition of the exclusion from the right to benefit depends on the fact that the plaintiff beneficiary’s request to benefit from the immovable property or income subject to the lawsuit was notified to the defendant beneficiary before the payment period was requested. However, some exceptions to this rule have emerged with established judicial practices.
These; The real estate subject to the lawsuit is public property, the requested real estate is located in places where natural products are grown (such as vineyards, gardens) or legal results are obtained by renting (such as workplace, housing), the stakeholder sitting in a shared real estate has the right to the entire place and rejects the partnerships of others, the parts of the joint real estate or part of it that each stakeholder will benefit from as a result of the use agreement between stakeholders have been determined, and the plaintiff has previously prevented foreclosure against other stakeholders, Decertification of the partnership, ecrimisil and similar cases or cases in which he has filed a lawsuit with a request for enforcement proceedings.
Apart from this, products that occur spontaneously in terms of the product brought by the immovable property; mown grass, collected nuts, tea or a business established by the heir or businesses that generate income on their own do not need to be prohibited from benefiting in case of occupation.
Again, if as a result of the use agreement between the stakeholders, the joint real estate or a part of it that each stakeholder will benefit from has been determined, the claimant stakeholder will not be required to prohibit the use of this real estate against the respondent stakeholder, if the partnership is terminated, Decriminalized, and similar lawsuits are filed.
For this reason, with the exception of the exceptions counted in terms of the immovables subject to the lawsuit, the fulfillment of the usufruct prohibition condition will be sought, and the claim that the usufruct prohibition condition has been fulfilled can be proved with any kind of evidence. (Decision of the General Assembly of the Court of Cassation dated 27.02.2002 and numbered 2002/3-131 E, 2002/114 K)
As for the concrete incident, it is discussed whether the actual use connecting all stakeholders has taken place in the disputed real estate where the 3-storey structure is located, and if so, who and in what way is the subject of the dispute.
It has not been disclosed who owns the shares and by whom they are used, whether there is a place that the plaintiff can use if they are not used, whether there are empty apartments in the real estate.
Therefore, it is necessary to conduct research and examination in accordance with the above-mentioned principles, collect all the evidence put forward by the parties, conduct on-site reconnaissance through experts, determine whether the actual use of the method connecting all stakeholders has been realized, if it has, who used what, if the actual use has not been realized, the claimant’s share in the real estate should be determined. While it is necessary to determine whether there is a place of use or use, whether the entire real estate is used by the defendant, whether there is an empty apartment in the real estate in a way that leaves no room for hesitation, and to decide within the framework of the conclusion to be reached, it is not correct to establish a written judgment as a result of incomplete research.
Conclusion: The defendant’s appeals are valid for the reasons stated. With its adoption unanimously on 09.06.2016, the 428th of the HUMK No. 1086 for the reasons explained. according to the article, your sentence is EXTRA …