T.R. SUPREME COURT
- Law Office
Basis: 2015/15448
Decision: 2016/2537
Decision Date: 01.03.2016
ACTION FOR REGISTRATION – THE RIGHT OF PREFERENCE IS A RIGHT THAT CAN BE USED WITH THE SALE OF THE SHARE IN ACCORDANCE WITH THE TMK ARTICLE, AND IT IS NOT ENOUGH TO ESTABLISH THE SALES AGREEMENT FOR THE USE OF THIS RIGHT – THE PROVISION NEEDS TO BE BROKEN
SUMMARY: The case is about cancellation of title deed and registration request due to preemption right. In addition, in accordance with the article of the TMK, the preemption right is a right that can be used with the sale of the share, and it is not sufficient to conclude a sales contract in order to exercise this right. The sale becomes valid and public once the property is registered in the land registry. Since the plaintiff filed this lawsuit on the day following the registration of the subject share in the name of the defendant, the two-year period of deprivation of rights described in the article of TMK has not passed. While a decision on the merits of the case should have been made by the court, considering the aforementioned issues, the rejection of the case was not considered correct, and the judgment had to be reversed for this reason.
(4721 S. K. art. 54, 105, 599, 705, 732, 733, 1022)
Lawsuit: At the end of the proceedings made by the attorney of the plaintiffs, upon the petition filed against the defendant on 11.12.2013, the title deed cancellation and registration request due to preemption; Upon the notification made for the date of 16.02.2016, which was determined by the attorney of the plaintiffs, upon the examination of the verdict dated 09.04.2015 regarding the rejection of the case with a hearing by the Court of Cassation, the attorney of the plaintiffs who appealed, Atty. … and the defendant’s attorney, Atty. …they came. An open trial has begun. After the decision to accept the appeal petition, which was understood to be on time, the oral explanations of the attendees were heard. The trial was declared over. The matter has been decided. Afterwards, the file and all the papers in it were examined and the necessity was considered:
Decision: The plaintiffs filed a lawsuit based on the pre-sale agreement between the previous non-litigation stakeholder of the immovable parcel numbered 397 and the defendant, claiming that the share in the lawsuit was registered in the name of the defendant, and that the other shares were acquired through sales, and that no notification was made. They asked for registration.
The defendant defended the rejection of the lawsuit by stating that the period of disqualification has passed, there is an actual division, and that he has acquired some of the shares through barter.
The court dismissed the case on the grounds that the statute of limitations had expired.
The judgment was appealed by the plaintiffs attorney.
The case is about the cancellation of the title deed and the registration request due to the right of pre-emption.
The right of pre-emption is a right that entitles other stakeholders to purchase this sold share first, in case a stakeholder sells his share in the real estate partially or completely to a third party in immovables subject to shared ownership provisions. This right arises as soon as the joint ownership relationship is established and becomes available with the sale of shares.
In the concrete dispute, the ownership of the disputed share in the parcel numbered 397 is finalized on 02.11.2011. It was won with the decision of the Civil Court of First Instance no. 2009/556, Decision no. 2010/563. The execution of the aforementioned provision was made on 12.12.2011 and the share was registered in the name of the defendant.
Registration is mandatory for the birth of real rights. Unless a registration with an innovative nature is made, the real right cannot be disposed of and cannot become public.
Pursuant to Article 705/1 of the TMK, “The acquisition of immovable property is through registration.”
In accordance with Article 705/2 of the TMK; In cases of inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated in the law, property is acquired before registration. However, in these cases, the owner’s ability to make savings depends on the fact that the property is registered in the land registry.
Article 1022/2 of the TMK states that the effect of registration will begin on the date of entry to the journal. If the property right is registered in this way, it becomes public and can be claimed against everyone. “…it should be noted right away that in Turkish Law, registration is a requirement in principle for acquiring immovable property. As a matter of fact, according to article 705 of the Turkish Civil Code numbered 4721, the acquisition of immovable property is by registration.
On the other hand, the principle of registration in Turkish Law is not absolute. In the presence of certain legal reasons, the ownership of the immovable is transferred and acquired even before the registration is made. However, in order to be able to talk about an exception to the registration principle, this exception must be prescribed by law. The cases of non-registration acquisition of immovable property are shown in Article 705/2 of the TMK and in Articles 54, 105 and 599 of the same Law, and in Article 151 of the partially repealed Turkish Commercial Code No. 6762. 705/2 of the TMK. pursuant to the article; “In cases of inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated in the law, property is acquired before registration. However, in these cases, the owner’s ability to make savings depends on the fact that the property is registered in the land registry.
Inheritance pursuant to article 705/1 of the Turkish Civil Code
Ownership is acquired prior to registration in cases of seizure decision, forced execution, occupation, expropriation. In this case, the immovable is transferred to the new owner together with all its registered or annotated burdens. Provided that it is in good faith, no right cannot be asserted against a person who makes unregistered gains, that is, the provision of TMK article 1023 is also applied to this person. The person who acquires the property without registration enjoys all the rights and powers of an owner before the registration, but these rights and powers cannot be claimed against third parties in good faith unless the property right is registered in the title deed, because they have not yet been clarified. For this reason, it is of great benefit for this person to immediately register his unregistered property right without delay. Subsequent registration has only a declarative nature (Jale G. Akipek, Turkish Property Law, Real Rights, Second Book, Ownership, Second Edition, Sevinç Press, Ankara, 1973, pp.121-122).
However, in non-registration acquisitions, savings cannot be made unless registration is made, because the person who acquires the immovable without registration does not appear as the owner in the land registry.
As a matter of fact, this issue is stated in article 705/2 of the Turkish Civil Code as “however, in these cases, the owner’s ability to make savings depends on the registration of the property in the land registry”.
In the concrete case; by the plaintiff İşbank attorney, the debtors are out of action Öz Aksarıhanlar Animal Husbandry Foodstuffs Tarım Ürünleri Zirai Aletler San ve Tic Ltd. Sti. and U. In the execution proceedings initiated against S. and carried out in the file numbered 2007/3965 E of the İzmir 8th Enforcement Directorate; One of the debtors registered in 725 parcels over the 2007/346 instruction file of the Akhisar 2nd Enforcement Directorate, Ü. S.’s 8000/12200 shares are requested to be sold by tender; It is understood that in the forced tender held on 14.05.2009, the said immovable share was tendered to the creditor İşbankası A.Ş. for 13.400 TL, and the tender was finalized on 04.09.2009.
of the General Assembly of Law on 01.11.1972 and 1968/2-869 E., 1972/891 K.; As stated in the decree dated 13.03.2002 and numbered 2002/8-160 E., 2002/191 K., filing a lawsuit is a dispositional act, and the plaintiff, who has not been registered in the name of the real estate, does not have the right to file the lawsuit at hand. While the local court should decide to dismiss the case considering this point, it is wrong to make a written judgment with a wrong assessment…” (Y. HGK 13.11.2013 2013/6-299 E. 2013/1566 K.).
In the event that is the subject of the lawsuit, the defendant acquired a share in the immovable subject to the lawsuit with a provision that the plaintiff is not a party to. Although the defendant gained the right of ownership on the date of the finalization of the judgment, he obtained the right of disposition on this share by registration. It is also against the principle of “openness of the land registry” regulated in Article 1020 of the TMK that the claimant knows that the decision to which he is not a party is finalized and that the right of preemption is expected according to this situation, in case the party who won the property right before the registration can obtain the right of disposition only by registration. Moreover, the decisions regarding the registration do not contain a conviction for performance and can be executed at any time by the person who has the right to be registered, since they have an innovative nature. In this case, the execution of the judgment after the expiry of the periods determined for pre-emption in Article 733/final of the TMK may lead to abuse of the right.
In addition, pursuant to Article 732 of the TMK, the preemption right is a right that can be used with the sale of the share, and it is not sufficient to conclude a sales contract in order to exercise this right. The sale becomes valid and public once the property is registered in the land registry. Since the plaintiffs filed this lawsuit on 11.12.2013 after the date of 12.12.2011, when the share in the lawsuit was registered in the name of the defendant, the two-year deprivation period described in Article 733/last of the TMK has not passed.
While the court should have made a decision on the merits of the case by considering the matters stated, the rejection of the case with a written justification was not considered correct, and the judgment had to be overturned for this reason.
Conclusion: For the reasons explained above, with the acceptance of the plaintiffs’ attorney’s objections, the verdict was quashed, the Court of Cassation hearing attorney fee of 1,350 TL was collected from the defendant and given to the plaintiffs, the fee paid in advance was returned to the depositor upon request. with, the decision was made.
NEGATIVE VOTE
Since the dispute was passed to the defendant on the date of finalization of the compulsory registration of the property right after the acquisition of the subordinated share as a result of the compulsory registration case, whether the pre-emption right was born on the finalization date of the registration decision or on the registration of the decision to the land registry, and accordingly, the two-year deprivation of rights envisaged to file a lawsuit. It is collected at the point whether the time has passed or not.
As stated in the decision of the General Assembly of the Civil Court of Appeals dated 20.03.2013 and numbered 2012/6-855, Resolution 2013/376;
In article 732 of the Turkish Civil Code No. 4721, “P
In the event that a shareholder with a monthly ownership sells his share on the immovable completely or partially to a third party, other stakeholders may exercise their right of pre-emption.” In article 734 of the same law, “The right of pre-emption is exercised by filing a lawsuit against the buyer. The holder of the preemption right is obliged to deposit the sales price and the title deed expenses of the buyer in cash, within the period determined by the judge, to the place to be determined by the judge, before the decision to register the share on his behalf. has been called.
As can be seen, in the relevant articles regulating the “right of preemption”, “sale” is always mentioned and it is emphasized that the preemption right arises with the sale of the share. In other words, it is sufficient to establish a valid sales contract in order to use the preemption right, and there is no need to wait for the share to be registered in the deed on behalf of the defendant. As a matter of fact, the same issue was accepted in the decision of the Supreme Court of Appeals General Assembly dated 06.02.1957 and numbered 1957/6-1-6.
“Şuf’ali share was acquired as a result of the compulsory registration case. There is no obligation to register in the land registry in order to acquire the right of ownership. Since the lawsuit is filed within one month from the finalization of the registration notice, it is timely.” (The 6th Civil Chamber of the Supreme Court 7.7.1994/7426-7710 p. Decision).
“The share with Şuf’a was sold to the defendant by a voluntary tender dated 14.07.1993. This sale replaces the contract of sale made in the presence of the official officer and the sale contract is completed with this tender, pursuant to article 225/2 of the UK. After that, the registration process required for the transfer of ownership is not an element of the completion of the sale contract. The right to Shuf becomes available with the contract of sale.” (Court of Appeals 6th Civil Chamber 06.06.1995 n. 5559-5754 p. Decision). In addition, similar verdicts: The 6th Civil Chamber of the Supreme Court of Appeals, 21.04.1993 t. 4653-4852, 17.12.1986 t. 12701-1445, 15.01.1986 t. 11822-32 and 10.07.1962 t. 3628-4814 p. Decision). Source: (Müslüm Tunaboylu – Preemption Cases, 5th Edition pp. 237 to 286).
“…If the share that is the subject of the lawsuit is won by a court decision, the period of forfeiture begins to run for the exercise of the preemption right with the finalization of the court decision. Because, in accordance with the provision of Article 705/2 of the Civil Code, the property is deemed to have been acquired, without the need for registration, with the finalization of the court decision. At the time the lawsuit was filed, the court should have decided to dismiss the case in terms of time, since as of the date the judgment became final, a two-year period of disqualification was passed…” (Court of Appeals 6th Civil Chamber, 13.03.2007 t. 395-2647).
In Article 733 of the TMK, “…The sale is notified to other stakeholders by the buyer or seller through a notary public.
The pre-emption right expires after three months, and in any case, two years after the sale, from the date of notification to the rightful owner of the sale. provision is included.
According to the explanations made above, it is sufficient that a valid sale has been made for the period of disqualification to begin to run. The buyer or seller notifies the other stakeholders of the sale transaction through a notary public. If a notification is made through a notary public (no obligation), the pre-emption right case is dismissed within three months, and in any case two years after the sale. Both in the text of the law and in the case law, the date of registration to the land registry is not taken as a basis for the beginning of the period. The time starts to run with the sale. The registration lawsuit filed as a result of the promise of sale contract and the share acquisition are also a kind of sale. The court order replaces the contract of sale here. In this respect, the periods determined by the law for the pre-emption right should be determined according to the finalization date of the registration decision. The subordinate share has been acquired as a result of the compulsory registration case, and there is no obligation to register in the land registry in order to acquire the property right. The lawsuit must be filed within three months and in any case within two years, in case of notification with a warning, from the finalization of the registration notice.
Considering the finalization date of the registration decision, in the concrete case, the decision of the court regarding the “rejection of the case in terms of the period of disqualification” should be approved, since it is in accordance with the law and jurisprudence.
For the reasons explained, I do not agree with the opinion of the majority of Mr.
