TC
YÜCE
Law Office
CASE NO: 2015/9380
DECISION NO: 2018/8897
DECISION DATE: 09.04.2018
COURT OF ORIGIN: COURT OF ORIGIN
CASE TYPE: CANCELLATION AND REGISTRATION OF TITLE DEED
FRAUD CANNOT BE USED AS A LEGAL GROUND FOR CANCELLATION AND REGISTRATION OF TITLE DEEDS – IT CANNOT BE SAID THAT A PERSON ENTERING INTO A CONTRACT WOULD NOT KNOW THE REAL ESTATE PRICES, AND A THIRD PARTY CANNOT BENEFIT FROM GOOD FAITH IN THEIR DUTIES.
The case between the parties was dismissed, and at the end of the registration case, the plaintiff’s attorney appealed the local court’s decision to dismiss the case within the legal time limit. However, the file was reviewed, the Review Judge’s report was read, explanations were heard, statements were taken,
and the necessary considerations were taken into account.
Decision
The case concerns the request for cancellation and registration of the title deed on the grounds of forgery.
The plaintiff claims that the registered owner of the immovable property with parcel number 1109 (new parcel number 33) withdrew from the lawsuit concerning the sale of the property with a forged signature, and that the power of attorney dated … authorized by a power of attorney dated 10.28.01.2005, and that if the signature was affixed without permission or knowledge, the property in question was transferred by the defendant in his capacity as attorney on 02.02.2005 … or to the other defendant … on 15.03.2005 by way of sale, and a decision was requested regarding the registration, citing the cancellation of the title deed as grounds.
Th defendant… defended the dismissal of the case by claiming that he was a bona fide third party who purchased the immovable property.
The defendant… did not respond to the lawsuit and did not attend the hearings.
The court ruled that the defendant… was acting in good faith, was a third party, and that the other defendant did not show passive hostility, and therefore dismissed the case.
Evidence obtained from the file contents shows that the real estate owned by the plaintiff was transferred to the defendant by way of sale on February 2, 2005, using the power of attorney granted to the defendant, with the date and journal entry of January 28, 2005.
On the other hand, the defendant transferred the real estate to … on December 16, 2005, again for a price of TL 8,000, and the sale price was transferred by the plaintiff’s institution, the physics specialist office. 03.2005, again showing a price of TL 8,000, and the sale price was transferred by the plaintiff’s institution, the physical expertise office, and the report dated 16.12.2005 states that he has the authority to sell on his behalf, and the power of attorney dated 28.01.2005
shows that the signature on the power of attorney is not the plaintiff’s handwriting.
There is no doubt that the sale made to the defendant with a forged power of attorney is invalid. The defendant … the other defendant who purchased the immovable property from the defendant …
is in good faith within the scope of TMK 1023, and there is no doubt that he will benefit from the protection of his property.
Th defendant … claimed in his/her response dated 23.06.2005 that he/she was a contractor and purchased the property in question through a real estate agent for TL 100,000.00.
The sale price indicated in the official contract is 8,000 TL, while the price determined by the expert for the sale of the immovable property and
on the date of the lawsuit is 348,000.00 TL.
Although the defendant claimed to have paid 100,000.00 TL to the seller, he failed to prove this defense in accordance with the procedure, and even if he had proven it, he reported that he had paid 1/3 of the price determined by the court,
so it cannot be accepted that he acted as a prudent merchant. In other words, it cannot be said that a contractor is unaware of real estate prices. In this case, purchasing real estate worth 348,000.00 TL for 8,000 TL cannot be considered in good faith, and therefore, pursuant to Article 1023 of the Turkish Civil Code (TMK),
it cannot be accepted that the defendant is entitled to material compensation.
Consequently, it is incorrect to conclude that the judgment was based on an erroneous assessment when deciding to accept the case.
The plaintiff’s appeal was accepted, and the ruling of the transitional Article 3 of Law No. 6100 (Article 428 of Law No. 1086) was revoked (by referral) with a unanimous decision on 09.04.2018.