T.R. SUPREME COURT
- Law Office
Basis: 2015/7834
Decision: 2016/7381
Decision Date: 22.06.2016
ACTION FOR DAMAGES – CLAIMS FOR DAMAGES ARISING FROM KEEPING THE LAND REGISTRATION – RESEARCH AGAINST EVALUATION OF IF THE ITEM CAN BE COUNTED AT THE QUALIFICATION OF THE LAND – JURISDICTION BASED ON FAKING EXAMINATION AND RESEARCH
SUMMARY: In order for the court to reach the right conclusion, it should be re-evaluated whether the immovable that does not have a residential area and is surrounded by agricultural lands in its immediate vicinity can be considered as a land within the framework of the decision of the Council of Ministers and the decision of the Supreme Court Jurisprudence Merging Board; If it is determined that the immovable does not qualify as a land according to these principles, a decision should be made according to the result by determining the value of the immovable on the date to be evaluated according to the agricultural income method, taking into account the qualities of the nearest agricultural lands. It is against the procedure and the law to make a judgment based on incomplete examination and research, regardless of the matters explained.
(4721 No. K. Art. 1007) (6098 No. K. Art. 49) (2942 P. K. Art. 11) (YİBK 17.04.1998 T. 1996/3 E. 1998/1 K.)
Litigation: After the defendant requested the Court of Cassation to examine the verdict established at the end of the hearing of the case between the parties, after the decision to accept the appeal petition, which was understood to be in time, the file was examined and the necessary was considered:
Decision: With the petition dated 10/02/2014, the attorney of the plaintiff real person; Stating that the immovable with parcel number 1687 in the village of … is registered in the title deed in the name of the attorneys, the title deed of the immovable property was canceled due to the decision of the Civil Court of First Instance numbered … requested that it be given.
The defendant’s attorney requested that the case be dismissed.
The court accepted the case, and the compensation of 52,500,00.-TL determined in the expert committee report dated 09/02/2015 for the part of the immovable that is the subject of the lawsuit within the coastal line, with the interest to be processed as of the date of the lawsuit, 10/02/2014 … … from the defendant party. and it was decided to pay the plaintiff; The verdict was appealed by the defendant.
According to the statement in the petition, the lawsuit is a compensation lawsuit arising from the keeping of the land registry in accordance with Article 1007 of the TMK No. 4721.
The cadastral determination of the immovable in the nature of a field on a land area of 452,800 m² in the village of …, parcel number 605, in the district of … was made in the name of the persons in the land registry, and the plots numbered 1687 and 605, which are the subject of the lawsuit, are one of the parcels formed as a result of the subdivision of the real estate. Plaintiff … purchased parcel 1687 on 07.09.1995 with 324 days and it was registered in his name. The plaintiff has purchased the immovable on the basis of the principle of trust.
In the examination of the land registry records and documents brought to the file and the finalized verdict samples; It is understood that the title deed registration of the immovable parcel numbered 1061, which is the subject of the lawsuit, in the name of the plaintiff party, in the case file of the Civil Court of First Instance with no. … The case at hand was opened on 10/02/2014.
In Article 1007 of TMK numbered 4721, “The State is responsible for all damages arising from keeping the land registry. The state shall recourse to the officials who are at fault in the occurrence of the damage.” According to this regulation, the responsibility of the state is the strict liability arising from the trust in the official registry. The strict liability arising from the trust in the registry is based on the deprivation of these rights by changing or losing the interests and real rights attached to the land registry as a result of incorrect registration. Because the State that undertakes and undertakes to keep the records correct is also obliged to pay the damages arising from false and baseless records.
Compensatory liability arising from the wrongful act regulated in Article 49 and the following of the Code of Obligations No. 6098 arises on the date of the wrongful act and the statute of limitations begins. In accepting the existence of objective (perfect) responsibility regulated in Article 1007 of TMK numbered 4721; If it is the responsibility of the State seeking to compensate for all the damages arising from the keeping of the land registry; It starts on the date when the court decision annulment of the title deed registration is finalized, when the property changes hands or the property is sold out and the property right is interfered with in similar ways, in other words, because a place is in the nature of public property or because it is a pasture, summer pasture, winter quarter, or remains in a sandy area within the coastline. In this case, in determining the fair and real value of the immovable, the date of the interference with the property right and the date of the damage should be taken as the basis, not the date of the lawsuit.
The compensation to be awarded due to the complete disposal of the property right or the evacuation of the property is based on the above-explained evaluation of the immovable.
The value on the date of death must be determined according to Article 11 of the Law No. 2942. According to subparagraphs 11/1-(f) and (g) of the aforementioned article, the net income it will bring if it is used as is and according to the location and conditions of the immovable property or resource on the expropriation (evaluation) date, and the special purpose before the expropriation (evaluation) day in the lands. It is explained that it will be determined over the sales value to be determined according to the non-precedent sales. In that case, while determining the value of the immovable as the basis for compensation, it is necessary to determine whether the property is a land or a field.
Pursuant to the decision of the Council of Ministers, dated 28.02.1983 and numbered 1983/6122, which was partially adopted by the Supreme Court, in order for an immovable not included in the zoning plan to be considered as a land, it is within the boundaries of the municipality or the adjacent area, but from the municipal services (because it is inhabited by the municipality or will be made inhabited). road, water, electricity, transportation, garbage collection, sewerage, lighting, etc.) are among the beneficiary and inhabited places; If the immovable is in the master zoning plan, in accordance with the decision of the Supreme Court of Appeals Jurisdiction of the Great General Assembly dated 17.04.1998 and numbered 1996/3-1998/1, the date it was included in this plan and its location in the plan, its use of infrastructure services and transportation opportunities, its distance from the municipality center, its It is also necessary to evaluate whether there is a possibility of construction for the purpose of settlement in terms of its form.
In the light of all these explanations, it is not possible to accept that an immovable that is not included in the master and implementation zoning plan and is not inhabited is a land, just because it does not have the opportunity to practice agriculture and is subject to special parcellation. For this reason, the examination and research carried out by the court regarding the quality of the immovable was not considered sufficient.
In this case, in order for the court to reach the right conclusion, it should be re-evaluated whether the immovable that does not have a residential area around and is surrounded by agricultural lands in its immediate vicinity can be considered as a land within the framework of the above-mentioned Council of Ministers decision and the Supreme Court Jurisprudence Unification Board decision; If it is determined that the immovable does not qualify as a land according to these principles, a decision should be made according to the result by determining the value of the immovable on the date to be evaluated according to the agricultural income method, taking into account the qualities of the nearest agricultural lands.
It is against the procedure and the law to make a written judgment based on incomplete examination and research, regardless of the matters explained.
Conclusion: For the reasons explained above, it was unanimously decided on 22.06.2016 that the defendant’s attorney’s appeals were accepted and the verdict was quashed. (¤¤)
