T.C.
SUPREME
General Assembly of Law No:2017/14-1761
Decision No :2018/407
Date of Decision : 28.02.2018
CANCELLATION AND REGISTRATION OF TITLE DEEDS – THE RIGHT TO PRE-PURCHASE – THE RIGHT OF STAKEHOLDERS
ACTIONABLE TAKSIM OF PAST USES
– EXERCISE OF THE RIGHT OF PRE-PURCHASE
WHETHER IT IS CONTRARY TO THE RULES OF DECENCY – DO NOT RESIST
HIS DECISION WAS OVERTURNED
SUMMARY: The case concerns the cancellation of the title deed based on the right to pre-purchase and the request for registration. In a concrete case, at the scene of
in the sketch attached to the expert report dated 04.05.2012, which was prepared as a result of the discovery made on 12.04.2012 (A)
the section marked with F.the part of, marked with (B) is O. I.in the case of the plaintiff of the section marked with (C), (D) with
marked section P. F.it is stated that the Dec is used, and the remaining part is an empty plot of land. Expert
as can be seen from the sketch attached to the report, the defendant’s share in the immovable property was purchased
there is no specific section. In that case, the presence of the actual installment in the immovable property is mentioned
it is not possible. Therefore, it is contrary to the rules of honesty for the plaintiff to exercise his right to pre-purchase
it should be recognized that it will not create. As such, the Local Court and the General Assembly of the Law
while it is necessary to comply with the decision to overturn the adopted Private Apartment, the previous decision should be resisted in accordance with the procedure and
it is against the law. Therefore, the decision to resist must be overturned.
(4721 Pp. K. m. 2, 732) (YIBK 14.02.1951 T. E. 1949/17 1951/1 K.)
Lawsuit: Filed due to the case of “cancellation and registration of title deeds based on the right to pre-registration”, which was Dec between the parties
at the end of the trial, Adana 1. 18.12.2012 issued by the Court of First Instance on the rejection of the case
day and date of 2011/503 E. and 2012/691 K. the decision No. 1 was appealed by the deputy plaintiff to the Supreme Court of October
14. The day of 24.09.2013 and the day of 2013/6323 of the Legal Department. and 2013/12132 K. by his numbered decision:
“… The case concerns the request for cancellation and registration due to the right of pre-registration.
The defendant defended the rejection of the case by stating that there is a de facto installment in the real estate.
The court decided to dismiss the case on the grounds that there is a de facto installment in the real estate.
The decision was appealed by the deputy plaintiff.
The plaintiff is a non-plaintiff who is a stakeholder in the immovable property numbered 5 parcels in which he is a stakeholder., s., R., T., s., s. and N.’earth
they transferred their shares to the defendant through a sale on 30.03.2011 at a cost of 306.000 TL, in fact
your share is worth 200,000 TL and the price has been shown to be high to prevent the right to pre-payment,
asserting that he wants to exercise his pre-emptive right, in the name of the 100/517 share registered in the name of the defendant in the immovable property
he asked for his registration.
The right to pre-empt is the right of a stakeholder to partially share in real estate in real estate subject to the provisions of shared ownership
or if it is sold entirely to a third party, to other stakeholders, it is sold
its share is primarily a right that gives the right to purchase. This right arises at the moment when the shared ownership relationship is established
and it becomes available with the sale of shares.
The immovable Dec, to which the subject of the preliminary case is related, are privately divided among themselves
when each stakeholder uses a certain part of the distribution, one of them uses the location that he uses, and this
if the seller sells the share corresponding to the place to a third party, the seller does not claim the right to this place on time
the plaintiff’s use of the pre-emptive right due to the sale made in the title deed of TMK 2. contained in the article
it’s incompatible with the rule of being honest. The claim of malice was filed with the Supreme Court dated 14.02.1951 and numbered 17/1
According to the Decision to Merge the Case Law, it can be put forward at any stage of the case, as well as by the court
it must be taken into the evil eye by itself. In such cases, there is no question of expanding the defense.
If there is an active sharing, the case must be dismissed.
In a concrete dispute, the plaintiff’s share of real estate No. 184/517 of 5 parcels of land is the plaintiff’s share, 100/517 is the share Dec
the defendant and other shares are also registered on behalf of non-litigant third parties. The defendant received this share on 30.03.2011.
T. and he bought it from his friends.
The section marked with the annex sketch (C) of the expert report dated October 04, 2012, which is based on the decision, is printed
as a plaintiff; a section marked with (A) and (D) is a kebab shop and a non-litigant part as a garden stakeholders; (B)
the section marked with is used by the non-case stakeholder as the workplace and home; as painted in yellow
the part shown is empty and is the part purchased by the defendant; in addition, the use of
it is also noted that there are non-stakeholders. A scientific expert of non-litigant stakeholders who sell shares to the defendant
evidence that they used the section of the case, the report of which is shown in the October sketch in yellow
is not included. Therefore, on the ground that corresponds to the share of the stakeholders who sold shares to the defendant, the actual
since there is no section that they use, the plaintiff who uses the right of presumption has a bad faith
it can’t be mentioned. It is not appropriate for the plaintiff’s preliminary request to be rejected for this reason.
The court should examine the merits of the work, leaving aside the issues described in writing
it was not considered correct to establish the provision in such a way, the decision had to be overturned for this reason …”
at the end of the trial, which was overturned and reversed instead of the file, the court held the previous
the decision was resisted.
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
Decision: The case concerns the cancellation of the title deed based on the right to pre-purchase and the request for registration.
The defendant’s deputy requested that the case be dismissed by arguing that the real estate subject to the lawsuit has actually been divided up and that each stakeholder has used its place in accordance with the actual installment.
The court decided to dismiss the case on the grounds that there was an active share in the real estate.
Upon the appeal of the plaintiff’s deputy, the decision was overturned by the Special Chamber on the grounds shown above, and the court resisted the previous decision.
The decision to resist was appealed by the deputy plaintiff.
The dispute that comes before the General Assembly of the Law through resistance is brought to the point of whether the past uses of the stakeholders on the real estate subject to litigation are in the form of an action-based installment, and according to the conclusion to be reached here, whether the plaintiff’s use of the right to pre-purchase is contrary to the rules of honesty.
Pre legal right to a stakeholder in joint ownership on immovable property to a third party wholly or partially share, sell, or share this with other stakeholder stakeholders to the same conditions authorizing the purchase of the first property connected with innovation-provoking (construction) is used with a case that is a right.
As a matter of fact, 732 of the Turkish Civil Code (TCC). article “If a stakeholder in the shared ownership sells his/her share of the real estate to a third party in whole or in part, other stakeholders may exercise the right of pre-emption. it contains the provision “. With this right, the legislator acts with the aim of ensuring that the right held by the persons who cooperate in property does not disintegrate and that third parties enter into partnership. It is clear that the right of legal pre-emption is one of the limitations of the right of transfer.
This restriction arising from the law arises with the exercise of the right. Unless the right to pre-purchase is used, the sale to a third party will remain current.
However, it should be noted that the actual issue of installment is not regulated, as well as there is no regulation on the effect of the pre-purchase right on its use. This concept has entered our practice with the case law of the Supreme Court. According to the definition made by the Supreme Court in its decisions on the issue, the actual Decimation is the case when the real estate to which the share subject to the legal right of pre-purchase is related is divided among the stakeholders specifically and each stakeholder uses a certain part.
As for the teaching, the actual distribution situation in shared ownership has not been defined independently of the Supreme Court decisions and has only been characterized as one of the uses of the legal right to pre-purchase contrary to the rule of honesty (Köylüoğlu, E.: Preliminary Case (Unpublished Doctoral Dissertation), Ankara 2011, p.
93).
According to the definition made in the judicial case law, three conditions are required for the actual installment to be in question. The first of these is the existence of an immovable property to which the share subject to the legal right of pre-purchase is related. Secondly, this immovable property is Decoupled among the stakeholders among themselves. Finally, the third is that each stakeholder uses a certain part. In case of any actual legal taksim does not have a provision that the right to pre are not available, although use of the immovable or the actual formed using a format determined by an agreement between all stakeholders, and stakeholders in the formation of a joint independent record long this situation if adopted literally, protection, 2nd TMC to find the definition in the article is a requirement of the rule of honesty. Because TMK’s 2nd
in its article, it is stated that everyone is obliged to comply with the rules of honesty when exercising their rights and performing their debts, and as a sanction for non-compliance, the abuse of the right will not be protected by the legal order. As is known, your right is clearly
in all cases where it is abused, there is also a violation of the honesty rule. The legal basis of the actual installment
this article of the TMK is also the basis (Tunaboylu, M.: Preliminary (Shuf ‘a) Cases, 4. b.,
Ankara 2008, p.440).
In a concrete incident, dated 04.05.2012, which was held as a result of an expedition conducted on 12.04.2012 at the scene of
in the sketch attached to the expert report, the section marked with (A) is shown in Fig. F.the part of, marked with (B) is O. I.in, (C) with
the plaintiff of the marked section, the section marked with (D) S. F.the Dec plot that is used by, and the remaining part is empty
it has been stated that it is in the nature of. As can be seen from the sketch attached to the expert report on real estate
there is no section specific to the share purchased by the defendant. In that case, the actual installment of the immovable
it is impossible to mention its existence. For this reason, the plaintiff’s right to pre-purchase should be used in accordance with the rules of honesty (TMK m.2) it should be accepted that it will not create an outlier.
As a result, it is necessary to comply with the decision of the Local Court to overturn the Special Chamber adopted by the General Assembly of the Law, while resisting the previous decision is contrary to the procedure and law.
Therefore, the decision to resist must be overturned.
Conclusion: The decision of the plaintiff bank’s deputy to resist with the acceptance of appeals was OVERTURNED for the reasons shown in the AD for the destruction of a Private Apartment, if requested, the advance fee for the appeal was returned to the depositor, within 15 days from the notification of the decision, the way to correct the decision is open,
it was decided by unanimous decision on 28.02.2018.
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