EN SUPREME COURT
Law Office
Originally: 2015/15448
The Verdict: 2016/2537
Decision Date: 01.03.2016
REGISTRATION PROCESS – THE PRIORITY Right IS A RIGHT THAT CAN BE USED WITH THE SALE OF SHARES IN ACCORDANCE WITH ARTICLE TMK, AND IT IS NOT ENOUGH TO ESTABLISH A SALES CONTRACT FOR THE EXERCISE OF THIS RIGHT – THE PROVISION MUST BE OVERTURNED
SUMMARY: The case relates to the request for cancellation of the title deed and registration due to the right of preemption. In addition, according to the article of the TMK, the right of preemption is a right that can be used together with the sale of the share, and it is not enough 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 to the title deed. Due to the fact that the plaintiff filed this lawsuit on the day following the registration of the share subject to the lawsuit on behalf of the defendant, the two-year period of deprivation of rights stipulated in the TMK article has not elapsed. Although the court should have made a decision on the merits of the case taking into account the above-mentioned issues, the rejection of the case was not deemed appropriate and the judgment should therefore be overturned.
(4721 SK md. 54, 105, 599, 705, 732, 733, 1022)
Case: At the end of the trial by the plaintiff’s attorney, upon the petition filed against the defendant on 11.12.2013, upon the request for cancellation of the title deed and registration due to the preliminary; upon the notification made for the date of 16.02.2016 determined by the plaintiff’s attorney, upon examination of the Supreme Court’s judgment dated 09.04.2015 regarding the dismissal of the case by trial, the plaintiff’s attorney Av. … with the defendant’s attorney Av. … they’ve arrived. The open trial has begun. After the decision was made to accept the appeal petition, which was understood to be in time, the oral statements of those present were listened to. The trial is over. The case has been settled. Later, the file and all the documents in it were examined and the necessity was seen:
Decrees: The plaintiffs filed a request for registration by asserting that the share subject to the lawsuit was registered on behalf of the defendant based on the pre-sale agreement concluded between the previous non-litigation stakeholder of the immovable parcel No. 397 and the defendant, while the other shares were acquired through sale, no notification was made.
The defendant defended the dismissal of the case by arguing that the time limit for reducing rights had passed, that there was a de facto division in question, that he had acquired some shares through clearing.
The court dismissed the case on the grounds that the statute of limitations had expired.
decision was appealed by the plaintiff’s attorney.
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 gives other stakeholders the right to purchase this 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 in parcel No. 397 was finalized on 02.11.2011. 2009/556 of the Court of First Instance, K. it was won by decision No. 2010/563. The execution of the said provision was made on 12.12.2011 and the share was registered on behalf of the defendant.
Registration is mandatory for the birth of rights in kind. Unless registration is made in the nature of innovation, the real right cannot be disposed of and cannot be owned by the public.
According to Article 705/1 of the TMK, “The acquisition of immovable property takes place with registration.”
According to Article 705/2 of the TMK; In cases of inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated by law, immovable property 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.
TMK’s 1022/2. the article states that the effect of registration will begin from the date of entry into 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 registration is a requirement in principle for the acquisition of immovable property in Turkish Law. As a matter of fact, 705 of the Turkish Civil Code No. 4721. according to the article, the acquisition of immovable property is through registration.
On the other hand, the principle of registration is not absolute in Turkish Law. In the presence of certain legal reasons, the ownership of the real estate is transferred and acquired even before the registration is made. However, in order to mention the exception to the registration principle, this exception must be stipulated 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 has been partially abolished with its articles. it is shown in the article. TMK’s 705/2. according to the article; “In cases of inheritance, decree, forced execution, occupation, expropriation and other cases stipulated in the law, the property 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.
Inheritance in accordance with Article 705/1 of the Turkish Civil Code
In cases of foreclosure decision, forced execution, occupation, expropriation, the property is acquired before registration. In this case, the immovable property passes to the new owner together with all its registered or annotated obligations. Provided that there is good faith, no rights can be asserted against a person who earns unregistered earnings, that is, to this person as well TMK 1023. the provision of the article is applied.
A person who acquires real estate without registration will have all the rights and powers of the owner before registration, but these rights and powers cannot be asserted against bona fide third parties, as it has not yet become clear, unless the property right has been registered in the deed. For this reason, it is of great benefit for this person to register his unregistered property right immediately without delay. The registration made later is only in the nature of a declaration (Jale G. Akipek, Turkish Condominium Ownership Law, Rights in Kind, The Second Book, Property, the Second Edition, Sevinç Printing, Ankara, 1973, p.121-122).
However, savings cannot be made in non-registered acquisitions unless registration is made; because the person who acquires the unregistered real estate 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 was appointed by the representative of Iş Bank, the debtors were Oz Aksarihanlar Animal Husbandry Food Agricultural Products Agricultural Tools San and Tic Ltd. Şti. and U. S. launched against and Izmir 8. In the enforcement proceedings carried out in the Enforcement Directorate’s file numbered 2007/3965 E; Akhisar 2. Ü Of the debtors registered in 725 parcels on the Enforcement Directorate’s 2007/346 instruction file. S.it is requested that 8000/12200 shares of be sold by tender; the creditor of the immovable shares in question in the forced tender held on 14.05.2009 is Işbank A.Sh.it is understood that it was tendered to 13.400 TL and the tender was finalized on 04.09.2009.
Dated 01.11.1972 and 1968/2-869 E of the General Assembly of Law., 1972/891 K . in its decision numbered; 13.03.2002 date and 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 wrong to make a judgment with a wrong discretion …” (Y. HGK 13.11.2013 2013/6-299 E. 2013/1566 K.).
The defendant has acquired a share in the immovable property subject to the lawsuit with a provision to which the plaintiff is not a party. Although the defendant gained the right of ownership on the date of finalization of the judgment, he obtained the right of saving on this share through registration.
If the plaintiff knows that the decision to which he is not a party has been finalized and that the right of preemption is expected according to this situation, the party that won the right of ownership before registration can only obtain the right of saving through registration, 1020 of the TMK. it is contrary to the principle of “openness of the land registry” regulated in the article. In addition, decisions related to registration have a new nature, since they do not contain a performance conviction and can always be executed by the person entitled to registration. In this case, the execution of the provision after the expiration of the deadlines set for preemption in Article 733 / final of the TMK may lead to abuse of the right.
Also 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 to the title deed. Since the plaintiffs filed this lawsuit on 11.12.2013 after the date of registration of the share in question 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 stated issues, it was not found appropriate to dismiss the case with a reasoned decision, and therefore the judgment had to be overturned.
Conclusion: For the reasons explained above, it was decided to overturn the judgment by accepting the objections of the plaintiff’s attorneys, collect the Court of Cassation trial attorney fee of TL 1,350 from the defendant and give it to the plaintiffs, and refund the paid fee to the depositor upon request.
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, it is collected at the point whether the right of preemption was born on the date when the registration decision became final or on the date of registration of the decision in the land registry and, accordingly, whether there is a two-year deprivation of rights stipulated for filing a lawsuit.
As stated in the decision of the General Assembly of Civil Chambers of the Supreme 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,
The partner, other stakeholders who partially or completely sell their shares on the immovable property to a third party along with monthly ownership may exercise their rights of preemption.” 734 of the same law. in the article, “The right of preemption is used by filing a lawsuit against the buyer. The right of preemption holder is obliged to deposit the sale price and the buyer’s title deed costs in advance to the place determined by the judge within the period to be determined by the judge until the decision is made to register the share on his behalf.” the judgment is in place.
As it can be seen, in the relevant articles regulating the “right of pre-sale”, “sale” is always mentioned and it is emphasized that the right of pre-sale is born with the sale of the share. In other words, it is sufficient to establish a valid sales contract in order for the right of preemption to be used, and there is no need to wait for the registration of the share in the title deed on behalf of the defendant. As a matter of fact, the General Assembly of the Supreme Court of Appeals dated 06.02.1957 and 1957/6-1-6 the same point is accepted in the numbered decision.
“The Şuf’ali stock was acquired as a result of the compulsory registration case. There is no obligation to register with the land registry in order to acquire the right of ownership. The case is valid because it was filed within one month from the finalization of the registration notification.” (Supreme Court 6. Law Office 7.7.1994/7426-7710 p. Decision).
“Şuf’a share was sold to the defendant with a voluntary tender dated 14.07.1993. This sale replaces the sales contract made in the presence of the official, and the sales contract is signed with this tender. m. completed in accordance with 225/2. After that, the registration process required for the transfer of ownership is not an element of the completion of the sales contract. The right to Shuf is born with a sales contract.” (Supreme Court 6. Law Office 06.06.1995 n. pp. 5559-5754. Decision). Also similar decisions: Supreme Court 6. Law 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 pp. Decision). Source: (Müslüm Tunaboylu – Preliminary Cases, 5. Print s. 237-286).
“…If the share subject to dispute has been acquired by a court decision, the reduction period for the exercise of the right of preemption begins to operate with the finalization of the court decision. Because, according to 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. Although the court should have decided to dismiss the case in terms of time, the two-year reduction period has passed since the verdict was finalized on the date of the case …” (Court of Cassation 6. Law Department, 13.03.2007 t. 395-2647).
TMK’s 733. in the article, “…The sale is notified by the buyer or seller to other interested parties 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 sale has been made for the right reduction period to start functioning. The buyer or seller informs the other stakeholders about the sale transaction through a notary. If notification is made through a notary public (there is no obligation), the right of preemption case is dropped 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 starts to work together with the sale. registration case filed as a result of the 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. The sub-share was acquired as a result of the compulsory registration case, and there is no obligation to register with the land registry 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, in any case within two years.
Considering the finalization date of the registration decision in the concrete case, the court’s decision on the “denial of the case in terms of the reduced time” must be upheld, since the statute of limitations has expired.
For the reasons explained, I do not agree with the majority opinion of Mr. President.