T.R. SUPREME COURT
- Law Office
Basis: 2015/7808
Decision: 2016/7383
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 that the judgment established at the end of the hearing of the case between the parties be examined by the defendant, 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: The plaintiff’s real person attorney, with the petition dated 28/10/2014, stated that the immovable with parcel number 1061 in Birlik village is registered in the land registry in the name of the attorney. stating that his title deed was canceled on the grounds that it was within the coastline, requested that the compensation of 17.000.-TL be taken from the defendant and given to the plaintiffs, without prejudice to his rights regarding the surplus.
The defendant’s Treasury attorney requested the dismissal of the case.
The court accepted the lawsuit partially, and that the portion of the immovable subject to the lawsuit within the coastline is collected from the defendant side, together with the interest to be accrued as of 28/10/2014, the date of the lawsuit, of the compensation of 13.230,00.-TL specified in the report of the experts dated 05/03/2015. It was decided that the claimant party’s request for surplus was rejected, the judgment 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 with a surface area of 452,800 m² in the village of …, parcel no. 605, in the district of … was made in the name of the persons, and the parcel numbered 1061, which is the subject of the lawsuit, is one of the parcels that occurred as a result of the subdivision of the parcel numbered 605. Plaintiff … purchased parcel 1061 on 08.04.1991 with 238 days and it was registered in his name. The plaintiff purchased the property 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; In the case file of the Civil Court of First Instance numbered …/… E. – …/… K., it was decided that the title deed registration of the immovable parcel numbered 1061, which is the subject of the lawsuit, was canceled and it was decided to be registered in the name of the Treasury with the forest quality, since the immovable in question remained within the coastline. It is understood that it was finalized on 01/04/2014 and the provisions have not been executed yet. The case at hand was opened on 28/10/2014.
Article 1007 of the TMK numbered 4721 states, “The State is responsible for all damages arising from the keeping of 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 because the property has changed hands or the property has been divested and the property rights have been interfered with in similar ways, in other words, because a place is a forest or pasture, a plateau, a winter pasture, or a sandy area within the coastline. . In this case, in determining the fair and real value of the immovable, it is not the date of the lawsuit, but the intervention to the property right and the damage caused.
date should be taken into account.
The compensation to be awarded due to the complete disposal of the property right or the emptied of its contents, the value of the immovable at the date of evaluation explained above should be determined in accordance with 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 Court of Cassation, in order for an immovable not included in the zoning plan to be considered a land, although it is within the boundaries of the municipality or the adjacent area, it is one of the municipal services (because it is inhabited by the municipality or will be settled). road, water, electricity, transportation, garbage collection, sewerage, lighting etc.) provided for 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 that 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; With the acceptance of the objections of the defendant Treasury attorney, it was unanimously resolved on 22.06.2016 that the judgment be OVERFINED. (¤¤)
