T.C. SUPREME COURT DECISION
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.)
Lawsuit: 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 … after the decision was made to accept the appeal petition, which is understood to be in the dec, the file was examined and considered necessary:
Decision: The plaintiff’s real person attorney, on the petition dated 28/10/2014, the real estate of Birlik village 1061 parcel is registered in the title deed on behalf of the proxy, … the Court of First Instance … /… E. – …/… K. he stated that his title deed was canceled on the grounds that the real estate remained within the shoreline with his decision No. 17.000 to reserve the rights to the surplus.-TL demanded that the compensation be taken from the defendant and given to the plaintiffs.
The defendant, the deputy Treasury, asked for the case to be dismissed.
According to the court, the partial acceptance of the case, the portion of the real estate subject to litigation that remains within the coastal boundary line is specified in the expert report dated 05/03/2015 13.230,00.-It has been decided that the TL compensation will be collected from the respondent side together with the interest that will be processed from 28/10/2014, which is the date of the lawsuit, and paid to the plaintiff side, the claimant’s claim for the surplus will be rejected, the verdict 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 parcel No. 1061 is one of the parcels that occurred as a result of the parcel process carried out in the real estate No. 605 parcel. Plaintiff …, 1061 purchased the parcel on 08.04.1991 with 238 evmiye and registered in his name. The plaintiff purchased the real estate based on the principle of trust.
In the examination of the land registry records brought to the file, as well as documents and finalized examples of additions; the subject of the case is the 1061 parcel of the real estate land registry … of the Court of First Instance … /… E. – …/… K. in the numbered case file, it is understood that the real estate subject to litigation remains within the coastal borderline, so the registration of the land registry was canceled and the registration was decided on behalf of the Treasury with the nature of the forest, and the decisions were finalized on 01/04/2014 after passing the Supreme Court audit, and the provisions have not yet been executed. The current case was filed on 28/10/2014.
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 starts on the date when the court decision revoking the registration of the title deed is finalized due to the fact that the property has changed hands or the property has been disposed of and the interference with the right of ownership has occurred in similar forms, in other words, a place is a forest or pasture, plateau, barracks in the public domain, 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 real estate 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 the Supreme Court partially 1983/6122, 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 the light of all these explanations, it is not possible to accept that a real estate that is not included in the decimation and implementation 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 make a provision in writing on the basis of 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 Treasury deputy. (¤¤)
Synergy Legislation and Case Law Program