T.R. SUPREME COURT
- Legal Department
Basis: 2016/3404
Decision: 2016/7050
Decision Date: 09.06.2016
PREVENTION OF ELATMAN, DESTROYMENT ACTION – WHO OWNS THE FLOODED BUILDING MUST BE DETERMINED WITHOUT SUSPECT, AND THE WHOLE BUILDING MUST BE DUE TO STORAGE THE VALUE TO THE COURT AT THE COURT
SUMMARY: All the records and documents regarding the zoning application are brought from the authority, and the discovery is made with an expert committee of three people, including the survey engineer expert, to determine which building is overflowing to the plaintiff’s real estate, and who is the owner of the flooded building, without any doubt, shows the application from the expert. While it is necessary to take reports and sketches suitable for inspection, and to store the value of the entire building in the court cashier in case it is determined that the entire building has become unusable in case of demolition, and a decision should be made according to the result, it is inaccurate to make a judgment with a erroneous assessment.
(4721 S. K. Art. 683)
Litigation and Decision: The case and the decision of the local court regarding the partial acceptance of the case, at the end of the demolition case, was appealed by the plaintiff, the defendant and the internal defendant, and the file was examined, the report of the Investigation Judge … was read, his explanations were heard, necessities were discussed and considered;
The case is related to the requests to prevent the acquisition of the zoning parcel, to demolish and to determine the amount of ecrimisil.
The plaintiff claimed that he is the dematerialized owner of the real estate no. 6713, parcel no. 7, that as a result of the zoning application in the area where the real estate is located, a part of the house belonging to the defendant overflowed the immovable, that he could not use the immovable due to the intervention, and the claim was made with the determination of the amount of compensation arising from the destruction of the flooded structure and the use of the immovable. and requested that the right of action be reserved.
The defendant defended the rejection of the case by stating that there was no unjust intervention, that he had built the building subject to the lawsuit before the zoning application, that if the building price was more than the land price, the real estate should be registered on behalf of the estate by assigning it, as per the provision of Article 18 of the Zoning Law, that he had the right to use the building unless the building price was paid.
The court decided that the defendant’s building overflowed with the zoning application, the demolition would not cause exorbitant damage, the value of the flooded part of the building should be given to the defendants in proportion to their share, the plaintiff had no legal benefit in filing a determination lawsuit while it was possible to file a lawsuit for compensation, and the defendants did not cause the lawsuit to be filed. It was decided that the case be partially accepted.
From the contents of the file and the evidence collected; The disputed parcel no. 6713 is registered in the name of the plaintiff, the defendant does not have any rights arising from registration and ownership, the defendant and the defendant, including his daughter, are the owners of the independent section in the neighboring parcel no. 6713, 10, and both real estates are formed as a result of the zoning application. It is understood that he has assigned his residence no. 2 in parcel 380 to the defendant, whose daughter is included, on 02.08.1999 by sale.
As known; Apart from legal privileges, the ownership of the inseparable part (integral part) and accordingly the right of disposition depends on the supply. This issue is clearly emphasized in article 684 of the Turkish Civil Code. However, 42/c of the law no. 6785, which has been repealed, with the law no. l605, and 18 of the zoning law no. 3194, which is still in effect. By introducing special provisions in the Articles of Association, the legal relationship between the building, which is an integral part (integral) and the supply, has been cut, and in some cases, it is foreseen that the building parcels can be created by leaving the building to someone other than the owner of the place on which it is located. Thus, unless the costs of the buildings are paid to the owner of the building by the relevant parcel owners or an agreement is not made between them, or a lawsuit is not filed for the dissolution of the partnership, the former owners of these structures are given the opportunity to use them until they expire.
On the other hand, the authority of the person who is the owner of the ground to use the immovable in person is limited, and the power to dispose of the building, which is an integral part (complementary part), is limited by a special law.
Article l0/c of the law no. 298l amended by the law no. 3290 has also made provision in the same direction.
In fact, if a person has built an integral part (complementary part) on an immovable property belonging to him or a third party based on a right protected by the law, if this place has remained within the zoning parcel belonging to the plaintiff as a result of the zoning application, an administrative decision made against his will and will. cannot be deemed to be faulty because there is a situation. For this reason, as mentioned above, the legislator
He felt the obligation to protect the owner of the building against the latter.
As for the concrete case, it is not possible to say that an adequate examination and research was carried out by the court within the framework of the above-mentioned principles.
Namely; According to the records in the pre-zoning file, that the building shown with (A) in the appendix of the expert report obtained as a result of the discovery made on the site of the immovable property no. it is fixed that the defendant and the defendant, including his daughter, are the rightful owners.
However, with the records and documents in the file, it is also clear that the defendant and the internal defendant of the zoning parcel no. 6713, where the flood building is located, are also the owners of the independent sections no. 2 in blocks (A) and (B).
Since the infringement of the immovable property in question occurred with the zoning application, which is an administrative disposition, and it cannot be said that the defendant is at fault, there is no doubt that the defendant cannot be judged with disciplinary action, since the court costs are not taken from the plaintiff and the defendant cannot be considered malicious due to the outbursts that occur as a result of the development application. On the other hand, the plaintiff does not have a request for the collection of ecrimisil.
As such, all the records and documents regarding the zoning application are brought from the authority, and an expert committee consisting of three people, including a survey engineer, makes an exploration, and it is determined without any doubt which building is overflowing to the plaintiff’s property and who is the owner of the flooded building. While it is necessary to obtain a report and sketch suitable for inspection showing the application, and if it is determined that the entire building has become unusable in case of demolition, the plaintiff should be given time to store the value in the court cashier, and a decision should be made according to the result, but the judgment is inaccurate as it is written with an erroneous assessment.
Dismissal of the Plaintiff’s unfounded appeals. The appeal objections of the defendant and the internal defendant are valid in terms of the aspects mentioned. With the acceptance of the decision, it was unanimously decided on 09.06.2016 that the judgment be OVERFINED pursuant to Article 428 of the Law No. 1086, for the reasons explained (through the provisional article 3 of the Code of Civil Procedure No. 6100), and that the advance fee be returned to the appellant.
