EN SUPREME COURT
Law Office
Originally: 2015/7808
The Verdict: 2016/7383
Decision Date: 22.06.2016
DAMAGE LAWSUIT – DAMAGE LAWSUIT ARISING FROM THE RETENTION OF THE LAND REGISTRY – INVESTIGATION AGAINST WHETHER THE ITEMS CAN BE COUNTED ACCORDING TO THE NATURE OF THE TITLE DEED – AUTHORIZED BASED ON FALSE EXAMINATION AND RESEARCH
SUMMARY: In order for the court to reach the correct conclusion, re-evaluating whether a real estate that has no residential area and has agricultural land in its immediate vicinity can be evaluated as land in accordance with the decision of the Council of Ministers and the decision of the Supreme Court Legal Unification Board; if it is determined that the real estate does not qualify as land according to these principles, the value of the real estate on the date of valuation according to the agricultural income method should be decided according to the result, taking into account the qualities of the nearest agricultural land, determining the value of the real estate on the date of valuation according to the agricultural income method. Regardless of the issues described, the establishment of a judgment based on incomplete examination and research is contrary to procedure and the law.
(K No. 4721. Md. 1007) (K No.6098. Md. 49) (2942 PK Md. 11) (YIBK 17.04.1998 T. 1996/3 E. 1998/1 K.)
Trial: After the defendant … requested that the verdict given at the end of the hearing of the case between the parties be examined by the defendant, the file was examined and the necessary examination was made upon the decision to accept the petition of appeal, which was apparently granted Decently:
Decision: The plaintiff’s real person attorney, in his petition dated 28/10/2014, stated that the immovable property numbered 1061 parcel in Birlik village was registered in the name of a lawyer in the land registry, stating that the title deed was canceled due to its location on the coastline, without reserving the rights to excess, 17.000.-TL requested that the compensation be taken from the defendant and given to the plaintiffs.
The defendant’s Financial lawyer requested that the case be dismissed.
For the partial acceptance of the case by the court, the portion of the immovable property subject to the lawsuit within the coastline, specified in the expert report dated 05/03/2015, is 13.230,00.-It has been decided to collect the TL compensation from the defendant along with the interest to be processed as of 28/10/2014, the date of the case. It has been decided that the claimant’s request for redundancy has been rejected and that the defendant will appeal the decision.
According to the statement contained in the petition, the case is 1007 of the TMK No. 4721. it is a case for compensation arising from the retention of the land registry in accordance with the article.
… district, … village, 605 parcel on the plot of land with an area of 452,800 m2, the cadastral determination of the real estate in the nature of a field was made on behalf of individuals, and the subject of the lawsuit, parcel No. 1061, is one of the parcels formed as a result of the bankruptcy of parcel No. 605. The plaintiff … purchased the parcel numbered 1061 on 08.04.1991 with 238 days and registered it in his name. The plaintiff has purchased the real estate on the basis of trust.
In the examination of the land registry records and documents brought to the file and the finalized decision samples; the Court of First Instance … /… E. – …/… K. in the numbered case file, it was decided to cancel the title deed registration of the immovable property numbered 1061 parcel subject to the lawsuit and to register it on behalf of the Treasury in the capacity of forest due to the fact that the said immovable property remains within the coastline. it is understood that it was finalized on 01/04/2014 and its provisions have not yet been executed. The case was opened on 28/10/2014.
1007 of the TMK No. 4721. in the article “The state is responsible for all kinds of damages arising from the maintenance of the land registry. The state shall resort to officials who are found to be at fault for causing the damage.” the judgment is contained. According to this regulation, the responsibility of the state is the perfect responsibility arising from trusting the official record. The perfect responsibility arising from trusting the registry is based on the deprivation of these rights by changing or losing the interests and rights in kind related to the land registry as a result of erroneous registration. Because the state, which undertakes and undertakes to keep the records accurate, is also obliged to pay the damages arising from false and unfounded records.
The liability for compensation arising from a tort regulated in Articles 49 and continuation of the Code of Obligations numbered 6098 arises on the date of the occurrence of the tort and the statute of limitations period begins. recognizing the existence of objective (perfect) responsibility regulated in Article 1007 of the TMK No. 4721;
If the responsibility of the state requesting compensation for all damages arising from the maintenance of the land registry is in question; it starts from the date of finalization of the court decision on the cancellation of the land registry registration due to the fact that the real estate changes hands or is disposed of and interferes with property rights in similar ways, that is, a place is a forest or pasture, a plateau, a barracks or a sandy area within the coastline. In this case, in determining the real and intangible value of the immovable property, the interference with the right to property and the damage caused are taken into account, not the date of the lawsuit.
History should be taken into account.
The compensation to be given due to the complete disposal of the property right or the unloading of the contents shall be based on the value of the immovable property on the valuation date described above, pursuant to Article 11 of Law No. 2942. it should be determined according to the substance. According to paragraphs 11/1- (f) and (g) of the same article, if the real estate or resource is used as it is, taking into account its location and conditions on the expropriation (valuation) date and its specific purpose before the expropriation (valuation) day, the net income it will bring will be determined at the sale price to be determined in accordance with non-precedent sales. In this case, in determining the value of the immovable property based on compensation, it is necessary to Decipher whether the immovable property is a plot or a field.
By the decision of the Council of Ministers dated 28.02.1983 and numbered 1983/6122, which was also partially adopted by the Supreme Court, despite the fact that it is located within the boundaries of a municipality or a military area, is subject to one of the municipal services (due to being located within the municipal boundaries or to be settled), the real estate that is not included in the Deconstruction plan can be considered as a plot of land to the beneficiary and the places of residence;
If the real estate is included in the nazim zoning plan, according to the decision of the Grand National Assembly of the Supreme Court dated 17.04.1998 and numbered 1996/3-1998/1, the date of its inclusion in this plan and its location in the plan, the availability of infrastructure services and transportation opportunities, the distance to the municipal center, whether there is a possibility of construction for residential purposes in terms of shape should also be evaluated.
In the light of all these explanations, it is not possible to accept a real estate that is not included in the Decim and application zoning plan and has no settlement on it as a plot only because it does not have the possibility of agriculture and is subject to special parceling. For this reason, the examination and research conducted by the court regarding the nature of the immovable property was not deemed sufficient.
In this case, in order for the court to reach the correct conclusion, a re-evaluation of whether a real estate with no residential area around it and agricultural land in its immediate vicinity can be evaluated as land within the framework of the above-mentioned decision of the Council of Ministers and the decision of the Legal Unification Board of the Supreme Court; if it is determined that the immovable property does not have the nature of land according to these principles, it should be decided according to the result by determining the value of the immovable property on the date when the valuation will be made according to the agricultural income method, taking into account the characteristics of the nearest agricultural land.
Regardless of the issues described, the establishment of a written judgment based on incomplete examination and research is contrary to the procedure and the law.
Conclusion: For the reasons explained above; With the acceptance of the objections of the Defendant Attorney of Finance, it was unanimously decided to impose an EXCESSIVE FINE on the judgment on 22.06.2016.