Supreme Court 14. In a decision of the legal department, the following determination was made regarding the statute of limitations on real estate sales promise contracts.
“Since a special statute of limitations is not provided for cases arising from the contract of sale of immovable property, Article 125 of the Code of Obligations. in accordance with the provision of the article, a ten-year statute of limitations applies, and this period begins to function with the birth of the possibility of performance of the contract. However, if the immovable property promised for sale has been delivered to the person who has actually accepted the promise of sale by contract, that is, to the promised creditor, the defense of the statute of limitations in lawsuits filed after the expiration of the ten-year statute of limitations 2 of the Turkish Civil Code. it does not rest because it is incompatible with the “rule of acting honestly” contained in its article.”
14.LEGAL DEPARTMENT 2016/3789 E. , 2016/9049 K.
“text of jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the reasoning made by the plaintiff’s deputy on the petition filed against the defendants on 28.12.2012 and the request for compensation at the second level of title cancellation and registration; the judgment of 07.10.2015 given on the rejection of the case was requested by the plaintiff’s deputy to be examined by the Supreme Court, hearing, on the notification made for 01.11.2016 appointed by the plaintiff asyl … on the other hand, the defendant … is hunting for the deputy. … they’re here. No one else came. An open hearing has been opened. After the decision was made to accept the appeal petition, which is understood to be in due course, the oral statements of the incoming party were listened to and the hearing was reported to be over. The matter has been decided. On the contrary, the file and all the papers in it were examined and considered as necessary:
decision
The case concerns the cancellation of the title deed and registration based on the contract of promise of sale, the request for compensation if it is not.
Parcel No. 23 dated a preliminary agreement to sell the plaintiff with the defendant moved 29.11.1993 premises registered in the name of the promise of the sale of shares if it has grabbed the cash from the sale, then the defendant as a result of the application correspond to the share of zoning, parcels 1 and 145 132 the island in the name of in the name of the defendant No. 1 800/79057 the parcel has been registered in the share, or the defendant … …they sold real estate on 29/11/2012 of the heirs, who bought in good faith, whether the defendant, 132 name, parcel No. 1 with name immovable 145, 1 parcel No. 800/79057 has requested and sued to decide on the cancellation of the title deed registration and registration of the share in his name … if this is not possible, to decide on the collection of 750,000.00 TL of compensation from his heirs as of the date of sale of the real estate.
Some of the defendants appealed against the statute of limitations and authority of the deputy, defended the rejection of the case.
The defendant … his deputy argued for the decision to dismiss the case against his client, who acquired the real estate in good faith.
The court decided to dismiss the case due to the statute of limitations.
The decision was appealed by the deputy plaintiff.
22 of the Code of Obligations. contracts for the promise of sale of immovable property, which are taken from Article 213 of the Code of Obligations. article 706 of the Turkish Civil Code. and Article 89 of the Notarial Code. in accordance with the provisions of the article, it is a type of contract that must be personally drawn up in front of a notary, in other words, its validity is subject to the condition of an official form, which imposes debts on both parties and provides personal rights. 716 of the Turkish Civil Code, when the performance of the promised creditor from the seller, who is charged with the debt of transfer of property by the real estate sales promise agreement, is not fulfilled. in accordance with the article, the applicant may request the fulfillment of the provision of the debt in the case of cancellation and registration of the title deed.
125 of the Code of Obligations, since a special statute of limitations is not provided for cases arising from the contract of sale of immovable property. in accordance with the provision of the article, a ten-year statute of limitations applies, and this period begins to function with the birth of the possibility of performance of the contract. However, if the immovable property promised for sale has been delivered to the person who has actually accepted the promise of sale by contract, that is, to the promised creditor, the defense of the statute of limitations in lawsuits filed after the expiration of the ten-year statute of limitations 2 of the Turkish Civil Code. it does not rest because it is incompatible with the “rule of acting honestly” contained in its article.
In the concrete case; it is claimed by the plaintiff that 132 ada 1 parcel and 145 ada 1 parcel went to the real estate as a result of the zoning application of the immovable property numbered 23 parcels, which is the subject of the sales promise contract, as a result of the real estate numbered 132 ada 1 parcel and 145 ada 1 parcel. As a result of the discovery made by the court, in the report dated 02.02.2015 prepared by the experts, it was stated that it could not be checked whether both parcels subject to litigation consisted of real estate numbered 23 parcels, because the records related to the zoning application were not included in the case file. In addition, in cases related to the same real estate, witnesses should be heard at the scene of the discovery and appropriate reports should be obtained by marking the places they show in the sketch.
The court should ask the municipality and the land registry office which parcels the immovable property numbered 23, which is the subject of the sales promise agreement, has gone to as a result of the zoning application and bring documents related to the zoning application. Parcel No. 23 preliminary sales agreement, which is subject to immovable 132 name, lot 145 name 1 Plot 1 and if you understood, by the discovery at the scene of the discovery of the same in the case of immovable relating to the witnesses at the scene of the rule that consideration must rest in the statements of witnesses at the hearing, the parties informed and listened to by taking a decision should be made according to the result of the decision in writing with unprecedented towards the establishment missing when you review the terms for these reasons, corruption had.
CONCLUSION: For the reason described above, the decision of the plaintiff’s attorney to OVERTURN the decision by accepting appeals, refund of the fee deposited in advance to the depositor on request, within 15 days of notification of the decision, the way to correct the decision is open,
it was decided by unanimous decision on 01.11.2016.
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