T.C. SUPREME

20.Legal Department
Mainly: 2015/7834
Decision: 2016/7381
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 of the Supreme Court of Appeal was requested 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 10/02/2014 with a petition dated transfer; … village 1687 parcel of real estate, registered in the deed on behalf of the surrogates, … the Civil Court of First Instance … with the decision of the real estate remained within the coastal edge line on the grounds that the deed was canceled, to reserve the rights to excess 52.500,00.- TL demanded that compensation be taken from the defendant and given to the plaintiff.

The defendant’s attorney requested that the case be dismissed.

The court decided to accept the case, for the remaining part of the property subject to the case within the coastal sideline,52.500, 00, determined in the report of the expert council dated 09/02/2015 transfer.- TL compensation was decided to be paid to the plaintiff with interest to be processed from 10/02/2014, which is the date of the lawsuit; the provision 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 the people in the deed made in the region and the subject of the lawsuit 1687 and 605 parcels are one of the parcels that occurred as a result of the parcel process made in real estate. The plaintiff … purchased the 1687 parcel on 07.09.1995 with 324 euros and it was registered in his name. The plaintiff purchased the property based on the principle of trust.

Final examination of documents and records imported the file with the examples ref deed; the deed on behalf of the prosecution case No. 1061 parcel of immovable recording the court of First Instance of the title deed of the immovable by staying within the shoreline Case No. in case of cancellation of registration and the date of the decision has not yet been executed, it is understood that the final verdict on 08/02/2013. The case was filed on 10/02/2014.

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 or pasture, plateau, barracks, coastal edge line in the sand area due to the cancellation of the registration of the title 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.

28.02.1983 day and of the Council of ministers adopted the decision of 1983/6122 Yargitayca partially, in accordance with an immovable that is not included in the zoning plan, the plot in order to be considered, although the adjacent area is within the boundaries of the municipality or municipal residential or services presented by the municipality of a tool to be made for housing, roads, water, electricity, transportation, garbage collection, sewer, lighting, etc.) 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’s attorney.