24 Jun Claim For Damages Caused By Improper Retention Of The Land Registry
Supreme Court Of The Republic Of Turkey
20.Legal Department
Mainly: 2015/7808
Decision: 2016/7383
Decision Date: 22.06.2016
CLAIM FOR DAMAGES – CLAIM FOR DAMAGES CAUSED BY THE RETENTION OF THE LAND REGISTRY – RE-INVESTIGATION AND EVALUATION OF WHETHER REAL ESTATE CAN BE CONSIDERED IN THE LAND QUALITY – FAILURE TO ESTABLISH A PROVISION BASED ON INCOMPLETE EXAMINATION AND RESEARCH
Summary: in the vicinity of the court to achieve the right result in built-up areas and agricultural fields are not located nearby, which is surrounded by the decision of the Council of Ministers of the immovable and the jurisprudence of the Supreme Court the decision of the board within the framework of the Merge of the plot can be regarded as considered in the qualification and should be re-evaluated; according to the principles of the qualification of the immovable that is not in the plot develops, considering the qualities of nearest agricultural land, agricultural income at the date the evaluation will be based according to the method determined the value of the property should be decided according to the result. It is against the procedure and the law to establish a provision based on incomplete examination and research, without regard to the issues described.
(4721 P. K. m. 1007) (6098 P. K. m. 49) (2942 P. K. m. 11) (YIBK 17.04.1998 t. 1996/3 E. 1998/1 K.)
Case: at the end of the hearing of the case between the parties, the decision was made by the Supreme Court to examine the provision established by the defendant … after the decision was made to accept the appeal petition, which is understood to be in duration, the file was reviewed, considered necessary:
Decision: plaintiff real person Attorney, 28/10/2014 with the petition dated transfer, Unity Village 1061 parcel of real estate registered in the deed on behalf of the surrogate, … First Instance Law Court …/… E. K. according to the decision, the real estate was canceled on the grounds that it remained within the coastal sideline, stating that the rights to the surplus remain 17,000.- TL demanded that compensation be taken from the defendant and given to the plaintiffs.
The defendant, the Treasury attorney, asked for the dismissal of the case.
By the court, the partial acceptance of the case,the portion of the property subject to the case within the coastal sideline of the experts ‘ report dated 05/03/2015 13.230, 00.- TL compensation to be paid to the plaintiff by collection from the defendant side with interest to be processed from 28/10/2014, which is the date of the lawsuit, the plaintiff’s request for excess was rejected, the decision was made, the decision was appealed by the defendant …
According to the filing, the lawsuit was filed by TMK No. 4721, 1007. in accordance with the article, it is a claim for damages caused by the retention of the land registry.
… district, … village 605 parcel no. 452.800 m2 area of the field of real estate, the cadastral determination was made on behalf of people in the region and the subject of the case 1061 parcel, 605 parcel No.of real estate is one of the parcels that occurred as a result of the parcel process. The plaintiff … purchased the 1061 parcel on 08.04.1991 with 238 euros and it was registered in his name. The plaintiff purchased the property based on the principle of trust.
In the examination of the land registry records and documents brought to the file and the completed application examples; the subject of the case is the Land Registry of the real estate No. 1061 parcel … the Court of First Instance … / … E. K. in the case file, it is understood that since the real estate subject to the case remains within the coastal edge line, the registration of the title deed was canceled and the registration on behalf of the Treasury with the nature of the forest was decided and the decisions were finalized on 01/04/2014, passing the supervision of the Supreme Court, and the provisions have not yet been executed. The case was filed on 28/10/2014.
1007 of TMK No. 4721. article ” The State is responsible for all damages arising from the retention of the Land Registry. The state applies to officials who have a defect in the birth of damage.”according to this regulation, the responsibility of the state is the perfect responsibility arising from trust in the official record. Perfect liability arising from trust in the registry is based on the change or loss of interests related to the land registry and rights in kind as a result of improper registration and the deprivation of these rights. Because the state, which undertakes and undertakes to keep the records correctly, is also obliged to pay the damages arising from the records that are contrary to the truth and without basis.
49 of the Code of Obligations No. 6098. and the compensation liability arising from the tort regulated in the continuation article arises on the date when the tort occurs, and the statute of limitations begins. 1007 of TMK No. 4721. in the acceptance of the existence of an objective (flawless) state of liability regulated in the article; the responsibility for compensation of the state, which aims to cover all losses arising from the retention of the land registry, is; in other words, a place in the public domain forest or pasture, plateau, barracks, sandy area within the coastal edge line due to the cancellation of the land registry begins on the date of finalization of the court decision. In this case, the determination of the reasonable and true value of the real estate should be based not on the date of the lawsuit, but on the date of the intervention in the property right and the birth of the damage.
11 of law 2942 on the value of the real estate at the date of evaluation described above. according to the article, should be determined. The aforementioned item 11/1-(F) and (G) paragraphs, according to the land expropriation of immovable property or the source (evaluation) in the history of the position and according to conditions, and the like in case of using the net income that can bring in the land expropriation (evaluation) before the day special-purpose non-sales on the sales value will be determined by precedent to determine describes. In this case, when determining the main value of real estate for compensation, it is necessary to determine whether its quality is land or field.
According to the decision of the Council of Ministers of 28.02.1983 and 1983/6122, partially adopted by the Supreme Court, a real estate not included in the zoning plan can be considered a land, although it is within the boundaries of the municipality or mojavir area, provided for municipal services (road, water, electricity, transport, garbage collection, sewage, lighting, etc., because it is inhabited by the municipality or will be inhabited.) among the places that benefit and are inhabited; a zoning plan is immovable, Supreme Court decisions and Major General of the board of Merge 1996/3 day 17.04.1998-1998/1 decision in accordance with the scope of this plan and the location of the date of receipt of the plan, infrastructure, municipal services and transport facilities for the purpose of housing construction by the use of the distance to the center whether there is the possibility of also needs to be evaluated.
In light of all these explanations, it is not possible to accept that a real estate that is not included in the nazim and application zoning plan and is not inhabited is a land with a stake, just because there is no possibility of actually farming and is subject to private parcel. For this reason, the examination and research conducted by the court on the nature of the real estate was not considered sufficient.
In this case, in order for the right result to be reached by the court, it is necessary to re-examine and evaluate whether the real estate, which does not have a residential area around it and is surrounded by agricultural land, can be considered in the land qualification within the framework of the decision of the Council of Ministers and the decision of the Board of combining the case law of the Court of Cassation described above; if it is determined that the real estate is not in the land quality according to these principles, a decision should be made according to the result by determining the value of the real estate in the date to be based on the evaluation according to the agricultural income method, taking into account the qualities of the nearest agricultural land.
It is against the procedure and the law to establish a provision in written form based on incomplete examination and research, without regard to the issues described.
Conclusion: for the reasons described above, a unanimous decision was made on 22.06.2016 to overturn the provision with the acceptance of the appeals of the defendant Treasury attorney. (¤¤)
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