T.R. SUPREME COURT
- Law Office
Basis: 2016/8735
Decision: 2016/10148
Decision Date: 27.06.2016
ACTION FOR CREDIT – THE IMPOSSIBILITY OF FAILING TO DISCUSS AND JUSTIFY THE MATTERS WHICH CANNOT DEMAND THIS FEES IN THIS CASE, BY THE APPLICANT, WHO DID NOT OBJECT TO THE ASSESSMENT APPRAISAL REPORT
SUMMARY: It has not been found appropriate whether the costs of irrigation wells, which are not taken into account during the appraisal made in the sales file by the court, also increase the value of the immovable, and whether the plaintiff who did not object to the valuation report determined in this way can demand this amount in this case or not, has not been justified.
(4721 S. K. Art. 684)
Litigation and Decision: As a result of the judgment of the receivable action between the parties by the court, upon the appeal by the defendant’s attorney and the defendant, within the time limit, of the judgment rendered for partial acceptance of the case; After the decision to accept the appeal petition, the papers in the file were read and the necessary consideration was given:
Plaintiff’s attorney, with the petition; The immovable, of which the parties are 1/3 shareholder, was sold as a result of the lawsuit for dissolution of the partnership, that the plaintiff planted walnuts, pears, tangerines, plums, figs, quinces, pomegranates, apricots, olives, vines, mulberries, poplar trees, drilled a water well, laid pipes on the immovable. , submersible pumps and motors installed, house, animal shelter, outbuildings built; useful compulsory expenses are worth 60,000.00.-TL; arguing that the price of the immovable sold as a result of the lawsuit for dissolution of the partnership was paid equally, and that the defendants were enriched for no reason; Preserving its rights regarding the surplus, it requested and sued the defendants to decide on the collection of 20,000.00 TL of receivables with legal interest.
Defendant … attorney, with a reply petition; requested the dismissal of the case.
Defendant … in his statement taken during the discovery; that the plaintiff planted and cultivated fruit trees, had an animal dam built, had a borehole drilled; He stated that the house was built by his uncle.
By the court; the partial acceptance of the lawsuit, the payment of 9.163,36 TL from the defendant to the plaintiff together with the legal interest to be accrued as of 27/09/2011, the date of the lawsuit, the rejection of the claim regarding the surplus, the rejection of the 9,163.36 TL, the date of the lawsuit 27/09/ It has been decided that it will be taken from the defendant, together with the legal interest to be accrued as of 2011, to be given to the plaintiff, and that the demand for the surplus will be rejected; The judgment was appealed in due time by the defendant’s attorney and the defendant.
The lawsuit is about the demand for the collection of useful and compulsory expenses, which are alleged to have been incurred by the plaintiff, from other stakeholders, according to the unjust enrichment rule, for the immovable subject to the lawsuit. The dispute, which is the subject of the appeal, is gathered at the point of whether the defendants have become unjustly enriched against the plaintiff.
From the information and documents in the file; Regarding the real estate subject to the lawsuit, … filed a lawsuit against … to dissolve the partnership with … The plaintiff filed the lawsuit for unjust enrichment at hand on 27/09, where it was determined to be TL, this figure was written as the estimated price in the auction announcement, the immovable was sold by auction for 116.500.00.- TL on 30/05/2011, out of action. It is understood that it opened on /2011.
In the additional report prepared by the agricultural engineer expert who participated in the discovery, the discovery was made by the court; It was determined that the value of the trees was 7.050.00.-TL, the expenses for the irrigation well were 15.000.00.-TL and the expenses for the trees were 1.190.10.-TL. He stated that it was determined as 4.250.00 TL, that this value was taken as the basis, and that the plaintiff contributed a total of 27.490.10 TL to the real estate in question (the sum of the value specified in the supplementary report and the value of the animal roof). This figure was divided into three and one third was left to the plaintiff, and the remainder was decided to be paid by the defendants.
According to the rules of unjust enrichment, the moment of impoverishment and enrichment must occur in order to claim credit. The unjust enrichment takes place on the date the sale is made and the sale price is paid, through the dissolution of the partnership. As a rule, if there has been an increase in the sale price of the immovable due to the contingent and useful expenses incurred by the defendants on the immovable, the plaintiff may request the amount of this increased value corresponding to the shares of the defendants in accordance with the unjust enrichment rules.
In the concrete case, the immovable that is the subject of the lawsuit was sold to the non-litigant person together with the contents on it, and the sales money was distributed in equal amounts (35,853.01 TL each) to the plaintiff and the defendants. From now on, the plaintiff can claim the expenses incurred by the immovable from the defendants, who are other stakeholders, in accordance with the provisions of the unjust enrichment provisions.
Plaintiff, due to the beneficial expenses incurred on the immovable property,
according to your wish; The way to be followed by the court in calculating the unjust enrichment is as follows: The actual version value to be obtained from the sale of the immovable on the day of the auction and under the same conditions should be determined, separately for the cases where the beneficial expenses incurred by the plaintiff through the expert expert have been made or not, and a value to be obtained in this way should be determined. When the difference occurs, these should be proportioned to each other, this ratio should be applied to the sales price made with the tender, the amount of reflection of the expenses incurred by the plaintiff on the tender price should be determined, and the amount corresponding to the share of the defendants should be determined from this amount. Otherwise, if it is understood that there is no difference between the values determined if the expenses were incurred and if they were not, the case should be rejected on the grounds that the expenses do not have an effect on the sales price, and therefore the defendants do not have any unjust enrichment due to these expenses.
In addition, it is understood that the value of the land, trees, house and roof is calculated in the valuation report included in the sales file of the real estate subject to the lawsuit, the total value found is written as the estimated price in the auction announcement, and irrigation well expenses are not mentioned at all in this report. It was also not found appropriate whether the costs of irrigation wells, which were not taken into account during the appraisal made by the court in the sales file, also increased the value of the real estate, and whether the plaintiff who did not object to the appraisal report determined in this way could demand this amount in this case.
Conclusion: It was unanimously decided on 27.06.2016 that the judgment in written form was inaccurate, and the appeal objections were valid for these reasons, without considering the principles explained above, and that the judgment be OVERFINED pursuant to Article 428 of the HUMK and that the appeal fee in advance be returned to the appellant upon request.
