21 Oct ACCORDING TO THE ARTICLE OF THE TMK, THE RIGHT OF PRE-EMPTION IS A RIGHT THAT CAN BE EXERCISED BY SELLING A SHARE, AND IT IS NOT SUFFICIENT TO ESTABLISH A SALES CONTRACT IN ORDER TO EXERCISE THIS RIGHT
T.C. SUPREME COURT
14.law office
Base on: 2015/15448
Decision: 2016/2537
Date of Decision: 01.03.2016
CASE OF REGISTRATION – ACCORDING TO THE ARTICLE OF THE TMK, THE RIGHT OF PRE-EMPTION IS A RIGHT THAT CAN BE EXERCISED BY SELLING A SHARE, AND IT IS NOT ENOUGH TO ESTABLISH A SALES CONTRACT IN ORDER TO USE THIS RIGHT – DUE TO THE NEED TO VIOLATE THE PROVISION
ABSTRACT: The case concerns the cancellation of the title deed and the request for registration due to the right to pre-emption. In addition, in accordance with the article of the TMK, the right of pre-emption is a right that can be exercised by selling a share, and it is not enough to establish a sales agreement to exercise this right. The sale becomes valid and public upon registration of the property in the land registry. Since the plaintiff filed this lawsuit on the day after the date of registration of the share subject to litigation on behalf of the defendant, the two-year period of reduction of rights described in the article of the TMK has not elapsed. While a decision should be made by the court on the merits of the work taking into account the stated issues, the rejection of the case was not considered correct and the decision had to be overturned for this reason.
(4721 Pp. K. m. 54, 105, 599, 705, 732, 733, 1022)
Case: At the end of the reasoning made by the plaintiffs’ deputy on the request for cancellation and registration of the title deed due to the petition filed against the defendant on 11.12.2013; at the end of the 09.04.2015-day judgment issued on the rejection of the case, the Court of Cassation will examine the case at trial on the notification made for the 16.02.2016 day appointed by the plaintiffs’ deputy at the request of the appellant’s attorney Av. … and the defendant’s attorney on the other side, Av. …they’re here. An open hearing has been opened. After the decision was made to accept the appeal petition, which is understood to be in due course, the oral statements of those who came were listened to. The hearing is reportedly over. The matter has been decided. On the contrary, the file and all the papers in it were examined and considered as necessary:
Decision: the plaintiff, the defendant No. 397 from the previous case with the stakeholders the stakeholders in the parcel of the immovable based on the sales contract between the defendant to share with the lawsuit on behalf of the subject of proceedings has been registered by default, notification is not made through sales of other shares acquired by asserting that in the case of preemption due to their registration in the name of the share they would have wanted.
The defendant defended the rejection of the case by stating that the period of reduction of rights had passed, there was an actual installment, and he acquired some shares by barter.
The court decided to dismiss the case on the grounds that the period of derogation of rights had passed.
The decision was appealed by the deputy plaintiffs.
The case concerns the cancellation of the title deed and the request for registration due to the right of pre-registration.
The pre-emption right is a right that gives other stakeholders the authority to purchase this share sold primarily if a stakeholder partially or completely sells his/her share of the immovable property to a third party in real estate subject to the provisions of shared ownership. This right arises as soon as the joint ownership relationship is established and becomes available upon the sale of shares.
In a concrete dispute, the ownership of the disputed share in real estate No. 397 parcel was finalized on 02.11.2011 …. It was won by the decision of the Court of First Instance No. 2009/556 on the Merits and Decision No. 2010/563. The execution of the aforementioned provision was carried out on 12.12.2011 and the share was registered in the name of the defendant.
Registration is mandatory for the birth of rights in kind. The same right will not be savable, nor will it be publicly acquired, unless it is registered with an innovation-generating nature.
According to Article 705/1 of the TMK, “Acquisition of immovable property is by registration.”
In accordance with Article 705/2 of the TMK; inheritance, court decision, forced execution, occupation, expropriation, as well as other cases provided for in the law, property is acquired before registration. However, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry.”
In Article 1022/2 of the TMK, it is explained that the effect of registration will begin on the date of registration in the journal book. In this way, if the right of ownership is registered, it becomes publicly available and can be asserted against everyone. “…It should be noted right away that in Turkish Law, registration is required in principle for the acquisition of immovable property. As a matter of fact, 705 of the Turkish Civil Code No. 4721. according to its article, the acquisition of immovable property occurs 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 property is transferred and acquired before the registration is made. However, in order to be able to speak about the exception to the registration principle, this exception must necessarily be provided for by law. 151 of the Turkish Commercial Code No. 6762, partly in articles 54, 105 and 599 of the same Law as Article 705/2 of the TMK, what are the cases of acquisition of immovable property that are not based on registration. it is shown in the article. TMK’s 705/2. pursuant; “Inheritance, court decision, forced execution, occupation, expropriation, as well as other cases provided for in the law, property is acquired before registration. However, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry.”
In accordance with Article 705/1 of the Turkish Civil Code, property is acquired before registration in cases of inheritance, court decision, forced execution, occupation, expropriation. In this case, the immovable property passes to the new owner along with all its loads that have been registered or annotated. An incomprehensible right cannot be asserted from the register against a person who has made an unregistered acquisition, provided that he has good faith, that is, TMK m.the provision of 1023 also applies to this person. A person who has acquired property without registration enjoys all the rights and powers that a property owner had before registration, but these rights and powers cannot be asserted against well-off third parties unless the right to property 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 register the property right that he has acquired without registration immediately without spending time. The subsequent registration has only declarative nature (Jale G. Akipek, Turkish Property Law, Rights in Kind, Second Book, Property, Second Edition, Sevinc Printing House, Ankara, 1973, p.121-122).
However, savings transactions cannot be made unless registration is made for gains that are not based on registration, because the person who acquires real estate without registration does not appear as the owner in the land registry.
As a matter of fact, this issue was stated in Article 705/2 of the Turkish Civil Code as “however, in these cases, the ability of the owner to make savings transactions depends on the fact that the property has been registered in the land registry”.
In a concrete case; When the plaintiff is acting as an Isbank, the debtors are Self-employed outside the case Livestock Foodstuffs Agricultural Products Agricultural Tools San and Tic Ltd. Sti. and U. S. it was launched about Izmir 8. In the enforcement proceedings conducted in the file No. 2007/3965 E of the Enforcement Directorate; Akhisar 2. One of the debtors registered in 725 parcels through the 2007/346 instruction file of the Enforcement Directorate. S.it is requested that the 8000/12200 shares of; in the forced tender held on 14.05.2009, the creditor of the immovable property in question is IsbankasiA at a price of TL 13.400.Sh.it is understood that the tender was tendered and the tender was finalized on 04.09.2009.
01.11.1972 days of the General Meeting of the Law and 1968/2-869 E., 1972/891 K.; dated 13.03.2002 and dated 2002/8-160 E., 2002/191 K. as mentioned in their numbered additions, filing a lawsuit is a savings transaction, and the plaintiff, who is not registered on behalf of the immovable property, does not have the right to file the lawsuit at hand. While the Local Court should have decided to dismiss the case taking into account this issue, it is incorrect to rule in writing with a erroneous assessment …” (Y. HGK 13.11.2013 2013/6-299 E. 2013/1566 K.).
In the event subject to litigation, the defendant acquired a share in the real estate subject to litigation with a provision that the plaintiff is not a party to. If the defendant has acquired the right of ownership on the date of finalization of the provision, he has also acquired the right to save on this share by registration. 1020 of the TMK, it is expected that the party that wins the right to property before registration knows that the decision that the plaintiff is not a party to has been finalized in the event that he can only obtain the right to save by registration, and that the right to pre-emption will be used accordingly. it is also contrary to the principle of “openness of the land registry”, which is regulated in its article. However, decisions on registration may not include a conviction provision in the case, and may always be executed by the one who has the right to register due to the fact that it has a novelty-giving nature. In this case, the execution of the provision after the expiration of the periods specified for pre-approval in Article 733 / last of the TMK may lead to abuse of the right.
In addition, TMK has 732. in accordance with the article, the right of pre-emption is a right that can be exercised by selling a share, and it is not enough to establish a sales contract to exercise this right. The sale becomes valid and public upon registration of the property in the land registry. Since the plaintiffs filed this case on 11.12.2013 after the date of 12.12.2011, when the share subject to litigation was registered on behalf of the defendant, the two-year period of entitlement reduction described in Article 733/last of the TMK has not elapsed.
While a decision should be made by the court on the merits of the work taking into account the stated considerations, the rejection of the case on written grounds was not considered correct, and therefore the decision had to be overturned.
Conclusion: for the reasons described above, the plaintiffs appeal judgement with the acceptance of corruption of counsel on appeal, the court of Appeals the trial 1.350 TL attorneys ‘ fees provision of the plaintiffs and the defendant is taken from the cash deposit fees she tucks in case of request for return, within 15 days of the receipt of the decision and to open the way for the correction of the decision by majority of votes in the history of 01.03.2016, it was decided.
VOTE AGAINST
The dispute is being collected at the point of whether the pre-registration right was born on the date of finalization of the registration decision or on the date of registration of the decision on the title deed, and accordingly the two-year period prescribed for filing a lawsuit has been passed.
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