T.C. THE DECISION OF THE SUPREME COURT
Based on: 2015/16555
Date of Decision: 27.06.2016
REQUEST FOR FORECLOSURE – ACQUISITION OF REAL ESTATE BEFORE REGISTRATION – THE REGISTRATION DECISION IS A DECLARATORY TRANSACTION, NOT A CONSTITUENT TRANSACTION – THE FAILURE OF THE DECISION TO REJECT THE REQUEST – THE VIOLATION OF THE PROVISION
SUMMARY: The case is related to the foreclosure request. The immovable subject of the case the case of non-registration of the title deed in the name of the debtor in the case of collusive sales process and cancel the deed and a malicious process on the grounds that the cancellation of registration where a decision is made on behalf of the plaintiff and granted registration in accordance with the regulations of the decision is not a founding reporter of nature nature is a process of a transaction in the name of the title deed to the plaintiff, and the plaintiff apparently that didn’t go over immovable on the subject matter of the case…. It is necessary to decide on the removal of liens placed in the follow-up files of the Enforcement Agency No. 2011/5303 and … of the Enforcement Agency No. 2010/28168. It was not considered correct for the court to decide to reject the request on the grounds that it was not in place, so the decision had to be overturned.
(4721 Pp. K. m. 705)
Litigation: Plaintiff and against the defendant by the other attorney and the other a 28/12/2012 given on the day with the petition, the court, upon request made by the removal of the warrant at the end of the trial; the case given for the rejection of 23/12/2014-time decision by the Supreme Court as the plaintiffs and the defendant requested the Deputy Attorney examination within the period, but once the petition of Appeal has been decided upon the adoption of the examination by the judge with the report was discussed by examining the papers in the file.
Verdict: The case is related to the request to abolish the foreclosure. The court decided to reject the request; the decision was appealed by the deputy of the plaintiffs and the deputy of the defendants.
The plaintiff stated that the liens placed on the real estate subject to the lawsuit numbered 3815 parcels in the enforcement follow-up files initiated by the defendants were successful, the sale of the real estate subject to the lawsuit … The Court of First Instance decided to cancel the case file numbered 2010/23 and 2011/524, and to process the family residence comment on the real estate, and requested that the liens placed by the defendants be removed.
The defendants, on the other hand, stated that the muvazaa claims were not in place and that the foreclosure process was applied because the real estate registration subject to the lawsuit on the foreclosure date was in the name of the out-of-court debtor, arguing that the case should be dismissed.
The court decided to reject the request on the grounds that the muvazaa claim had not been proven, that the liens placed on the real estate were placed before the family residence comment was placed on the real estate and while the real estate was registered on behalf of the debtors.
In the examination of the case file; under a power of Attorney given to the groom by the plaintiff to the case of the case on 06/09/2005 immovable sold out Clover Yilmaz, Yilmaz on 04/06/2008 Clover case by the executive in the capacity of the borrower, subject to the following files in’na for sale, this sale from the plaintiffs …’s wife’s main numbered 2010/23 to be aware of on the court of First Instance in case the transfer without the consent of the estate in the case of family housing because of the cancellation of the title deed in the name of putting family residence with a commentary…, requested by the court following the trial, it is understood that the sale transaction is a slow and malicious transaction contrary to the express provision of the law, and again with the acceptance that the house subject to litigation is a family residence; It is decided to cancel the title deed registration in the name of real estate No. 3815 parcel subject to litigation, to register and register the real estate in the title deed, and to place a family residence comment on the title record.
Article 705 of the Turkish Civil Code No. 4721. according to the article, registration in the land registry is required for the acquisition of immovable property. Registration is a land registry procedure that is sought for the registration of immovable property. Real estate cannot be acquired unless it is registered with the exception of legal exceptions. However, this rule is not an absolute rule applied, some of the exceptions to this rule are regulated in the Turkish Civil Code. In these exceptional cases, the immovable property listed in the law is acquired before registration, but no collateral savings can be made without registration. The important point in cases where real estate ownership was acquired before registration is that in these cases, the registration in the land registry is not of a constituent nature, but of a declaratory nature. Declarant The same right has already been acquired in registration; the task of registration is not to ensure that the right in kind is acquired, but to inform who the new owner of the right in kind is. TMK’s 705. in the second paragraph of the article, it is stated which cases will ensure the acquisition of real estate ownership before registration. According to this; Inheritance, court decision, forced execution, occupation, expropriation, as well as in other cases provided for by 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 this case, the subject matter of the case from the case of immovable cancel the deed and registration of the title deed in the name of the debtor in the case of a malicious process and process and collusive sales on behalf of the prosecution on the grounds that the cancellation of registration where a decision is made, the registration of the decision given in accordance with the regulations mentioned above transaction is not a founding reporter of the nature of nature in the name of the title deed to the plaintiff and the plaintiff is a process that didn’t go over apparently immovable on the subject matter of the case…. It is necessary to decide on the removal of liens placed in the follow-up files of the Enforcement Agency No. 2011/5303 and … of the Enforcement Agency No. 2010/28168. It was not considered correct for the court to decide to reject the request on the grounds that it was not in place, so the decision had to be overturned.
Conclusion: It was decided by a majority vote on 27.06.2016 that the appealed decision should be OVERTURNED for the benefit of the plaintiffs for the reasons described above, that there is no room for the defendant’s appeals to be examined at this stage according to the reason for the reversal, and that the fee received in advance from the plaintiffs should be returned upon request.
POST, VOTE AGAINST
I do not agree with the decision of the majority to overturn the articles in the file, as I believe that the decision is based on the evidence and the lawful reasons, especially the rejection of appeals that are not in place based on the fact that there is no inaccuracy in the evaluation of the evidence and the approval of the provision that is in accordance with the procedure and the law with the rejection of appeals that are not in place. 27/06/2016