15 Nov DECRIMINALIZATION CLAIM ARISING FROM THE KEEPING OF THE LAND REGISTRY – RE-INVESTIGATION AND EVALUATION OF WHETHER THE REAL ESTATE CAN BE CONSIDERED AS A LAND PLOT
T.C. SUPREME COURT DECISION
20.law office
Base: 2015/7834
Decision: 2016/7381
Date of Decision: 22.06.2016
COMPENSATION CASE – CLAIM FOR COMPENSATION ARISING FROM THE KEEPING OF THE LAND REGISTRY – RE–INVESTIGATION AND EVALUATION OF WHETHER THE REAL ESTATE CAN BE CONSIDERED AS A LAND PLOT – DECISIVENESS OF THE 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 taking into account the issues described.
(4721 Pp. 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: The Supreme Court’s examination of the provision established at the end of the hearing of the case between the parties was requested by the defendant, and after the decision was made to accept the appeal petition, which is understood to be in the dec, the file was examined and considered as necessary:
Decision: The plaintiff’s real person’s attorney stated on the petition dated 10/02/2014; … that the real estate No. 1687 parcel was registered in the title deed on behalf of the surrogates, … The title deed was canceled on the grounds that the real estate remained within the shoreline by the decision of the Court of First Instance …, 52.500,00 to reserve the rights to the surplus.-TL demanded that the compensation be taken from the defendant and given to the plaintiff.
The defendant’s deputy asked for the case to be dismissed.
52.500,00 determined by the court in the report of the expert committee dated 09/02/2015 on the acceptance of the case, the transfer of the real estate subject to the case to the part remaining within the coastal edge line.-It has been decided that the TL compensation will be paid to the plaintiff by collecting it from the defendant with interest that will be processed from 10/02/2014, which is the date of the lawsuit; the judgment has been appealed by the defendant.
According to the statement in the lawsuit petition, the case is filed under Article 1007 of TMK No. 4721. it is a compensation case arising from the keeping of the land registry in accordance with its article.
… district, … village 605 parcel No. 452.800 m2 of land real estate in the area of the area of the cadastral registration was made on behalf of the persons in the title deed made in the region and the subject of the lawsuit parcels No. 1687 and 605 are one of the parcels that occurred as a result of the parcel process made in the real estate. Plaintiff …, 1687 purchased the parcel on 07.09.1995 with 324 evmiye and registered in his name. The plaintiff has purchased the real estate 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 current case was filed on 10/02/2014.
1007 of TMK No. 4721. In the article “The State is responsible for all damages arising from the keeping of the land registry. The state shall appeal to the officials who are found to be at fault in causing the damage.” according to this regulation, the responsibility of the state is the perfect responsibility arising from the trust in the official register. The perfect responsibility arising from the trust in the register is based on the fact that the interests attached to the land registry and the rights in kind are changed or lost as a result of incorrect registration and deprivation of these rights. Because the State that undertakes and undertakes to keep the records correctly is also obliged to pay damages arising from untrue and unsubstantiated records.
49 of the Code of Obligations No. 6098. and the liability for compensation for a wrongful act regulated in the continuation article arises on the date of the wrongful act and the statute of limitations begins. 1007 of TMK No. 4721. in recognition of the existence of an objective (perfect) state of responsibility regulated in the article; The responsibility of the State for compensation, which aims to cover all damages arising from the keeping of the land registry, is; it begins on the date when the property changes hands or the property is disposed of and the interference with the right of ownership occurs in similar forms, in other words, the court decision that cancels the registration of the title deed is finalized due to the fact that the place is in the public domain or pasture, plateau, barracks, remains in a sandy area within the coastal coastline. In this case, the determination of the reasonable and real value of the immovable property should be based not on the date of the lawsuit, but on the date when the interference with the right to property occurred and the damage was caused.
11 of the Law No. 2942 on the value of the immovable property at the date of evaluation explained above, the compensation to be awarded due to the fact that the property right has been completely disposed of or has been emptied. it should be determined according to the article. 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 real estate’s dec value for compensation, it is necessary to determine whether its nature is a land plot or a 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.) being located between the beneficiary and the inhabited places dec; 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 impossible to accept that a real estate that is not included in the dec and application zoning plan and is not inhabited is a land with a bet just because it does not have the opportunity to actually farm and is subject to private parcel. Therefore, the examination and research conducted by the court on the nature of the real estate was not considered sufficient.
As such, in order for the correct conclusion to be reached by the court, it should be re-examined and evaluated whether the real estate that does not have a residential area around it and is surrounded by farmland in its immediate vicinity can be considered as a land within the framework of the decision of the Council of Ministers and the decision of the Council of Dec of the Supreme Court of Jurisprudence described above can be considered as a land; if it is determined that the real estate is not in the decency of the land plot according to these principles, a decision should be made according to the result by determining the value of the real estate on the date to be based on the assessment according to the agricultural income method, taking into account the characteristics of the nearest agricultural land.
It is against the procedure and the law to establish a provision in writing based on incomplete examination and research, without taking into account the issues described.
Conclusion: For the reasons described above, a unanimous decision was made on 22.06.2016 to OVERTURN the provision by accepting the appeals of the defendant’s attorney. (¤¤)
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