The Place Of A Donation That Looks Like A Sale About Pre-emption

The Place Of A Donation That Looks Like A Sale About Pre-emption

General Assembly of Civil Chambers 2013/2268 E. , 2015/1437 K.

CANCELLATION AND REGISTRATION OF TITLE DEED
PREMOVAL RIGHT
SHARED OWNERSHIP GRANT
MUVAZAA
TURKISH CIVIL CODE (TMK) (4721) Article 732

“Case Law Text”

At the end of the trial held due to the “pre-emption” lawsuit between the parties; upon the request of the defendant’s attorney for the examination of the decision dated 10.04.2012 and numbered 2011/750 E. 2012/624 K., which was given by Kahramanmaraş Civil Court of Peace on the acceptance of the lawsuit, with the decision of the 6th Civil Chamber of the Court of Cassation dated 28.02.2013 and numbered 2012/11057 E. 2013/3524 K;
“…The dispute is about the cancellation of the share registered in the name of the defendant due to the use of the pre-emption right and the request for registration in the name of the plaintiff. The court decided to accept the case and the judgement was appealed by the defendant’s attorney.
It is clearly stated in the Unification of Case Law Decision dated 27.3.1957 and numbered 12/2 dated 27.3.1957 that if the shareholder of the immovable property in the form of shared ownership assigns his share to husband, wife, son or relative, if it is claimed and proved that this contract, which is shown as a sale in form, is not actually a sale, but a transaction related to the right of inheritance or a purposeful transaction such as a grant, the right of pre-emption cannot be asserted. It is possible to prove this defence with all kinds of evidence, including witnesses. The aforementioned Case Law Unification Decision is an exception to the rule that the person who is a party to the contract cannot raise the defence of collusion in the transaction

As for our case; the plaintiff’s attorney, in his petition, stated that he was a shareholder of parcel no. 3952, block no. 3, and that one of the shareholders, A…..nin, sold his share to the defendant S.. M., one of the shareholders, sold his share to the defendant S. M.. The defendant’s attorney defended the dismissal of the lawsuit by stating that the defendant is the wife of the grandson of the assignor A. B…, that the assignment is a donation in reality even though it is a sale in appearance, that the assignor actually donated to his grandson as a birth gift for his newborn baby, that there is no exchange of money between them, and that the right of pre-emption cannot be used.

The parties are relatives and the defendant witnesses who were heard at the hearing summarised in their statements of similar nature that “the defendant was constantly interested in the assignor A… B., who is living in the same apartment block and donated it to his child as a birth gift. In this case, it should be accepted that the sale transaction between relatives is actually a donation. As it is not correct for the court to decide to accept the lawsuit with the written justification, while it should be decided to reject the lawsuit with the acceptance that the pre-emption right will not take effect in accordance with the Unification Decision, the judgement should be reversed…”
The case was reversed by majority of votes and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.

APPELLANT Defendant’s Counsel

DECISION OF THE GENERAL ASSEMBLY OF LAW

After it was understood that the decision to resist was appealed in due time and the papers in the file were read, the necessity was discussed:
The lawsuit is related to the request for cancellation and registration of the title deed based on the right of pre-emption.
The plaintiff’s attorney stated that the other shareholder of the immovable property, of which the plaintiff is a joint owner, transferred his share to the defendant through sale, and requested and sued for the cancellation of the defendant’s share and registration in the name of his client in accordance with the right of pre-emption.
Defendant’s attorney defended the dismissal of the lawsuit, stating that the transaction, which was realised as a sale in the title deed, was actually a donation between relatives, and that the right of pre-emption cannot be used in assignments for donation purposes.
The local court decided to accept the case on the grounds that the previous shareholder was not under guardianship and was the grandfather of the defendant’s spouse, that the defendant and his spouse did not have the title of heir, and that the defendant, who was a party to the transaction made in the title deed, could not rely on his own collusion by claiming that the assignment was collusive, since he was bound by the contract made by the defendant, and the decision was reversed by the Special Chamber for the reasons explained above upon the appeal of the defendant’s attorney.

Court decided to resist by expanding the grounds in its first decision, and the defendant’s attorney appealed the decision of resistance.
The dispute before the General Assembly of Civil Chambers of the Court of Cassation centres on whether the Unification of Case Law Decision dated 27.03.1957 and numbered 1956/12-1957/2 can be applied in the concrete case and whether the plaintiff can use the pre-emption right accordingly.
In the solution of the dispute, firstly, the nature of the pre-emption right should be clarified.
As it is known, it is important that the shareholders know and recognise each other, since there is a common management and usage situation between the shareholders in shared ownership. As a requirement of this need, in order to prevent the entry of a foreign person between the shareholders, to prevent the immovable from being divided into smaller parts, and to ensure that the shares are collected in the hands of the shareholder as much as possible, the right of assignment of the shareholder in shared immovable property is limited and the legal right of pre-emption is recognised.
The right of pre-emption is one of the legal restrictions of the ownership of immovable property, and it is stated in the Unification of Case Law Decision dated 26.12.1951 and numbered 1/6 that it is a right that gives rise to innovation.

On the other hand, in the Unification of Case Law Decision dated 20.06.1951 and numbered 5/13, the legal nature of the right of pre-emption,
“The right of usufruct is an innovative right to be exercised under certain conditions such as the sale of the usufruct share to a third party and its use within one month from the date of the sale, and it is used to create a new legal situation by the delivery of the unilateral declaration of will of the chief to the customer that he has used this right. By exercising this right, the chef becomes successor to the customer without the need to conclude a new contract”.

Article 732 of the Turkish Civil Code No. 4721 titled “Legal Preemption Right – Preemption Right Holder”
“In the event that a shareholder sells his/her share in immovable property to a third party in whole or in part, the other shareholders may exercise the right of pre-emption”.
Although there is no clear definition of the right of pre-emption in the aforementioned regulation, considering that the basic principle is the freedom of ownership and the power of disposition, while limiting the right of assignment of the shareholder, this limitation is limited and the right of pre-emption is introduced only for sales contracts.

This issue was also adopted in the Unification of Case Law Decision dated 20.06.1951 and numbered 5/13; in the justification of the decision, it was stated that the right of legal pre-emption, which is one of the encumbrances of immovable property, is a right in rem that gives the person who owns a share in the immovable property the right to purchase the share of another person in the event that the share of another person is sold to a third party, with the amount of the share cost to the customer and within a certain period of time.
As it is clearly seen, in order to be able to talk about the right of legal pre-emption, the share in an immovable subject to the provisions of shared ownership must be sold to a third party; the subject of the right of pre-emption is the sale of the share.
Accordingly, the right of pre-emption shall not arise in share assignments that are not the subject of a real sale and do not constitute a sale. Since the right of pre-emption must be exercised within the conditions of the sale of the share, it is not possible to assign it by fulfilling the same conditions from those who acquired the share with a consideration other than money.
In this context, if the assignment is in the form of a grant, the right of pre-emption cannot be exercised since the grant aims to transfer a property to the ownership of a third party free of charge, but not for sale.

Because in pre-emption, the price that the person who uses the pre-emption right is obliged to pay to the purchaser of the share does not exist in the grant, and it is not possible for the person who uses the pre-emption right to request the transfer of the share to him without paying any price.In the event that the defence is made by the purchaser of the share that the assignment transaction is actually a grant although it is shown as a sale, in other words, in cases where it is claimed that the grant and the assignment are intended; as a rule, it is clear that the claim of collusion will not be heard, since the defendant who assigns the share is a party to the collusive official transaction and no one can rely on his own collusion.
In the concrete dispute, the defendant defended that the grant transaction, which was actually made for the purposes arising from the inheritance law, was ostensibly shown as a sales transaction, and based his claim on the Unification of Case Law Decision No. 1956/12 E. 1957/2 K. dated 20.03.1957.
In the solution of the dispute, the scope and purpose of the aforementioned Case Law Unification Decision is important, and in order for the aforementioned decision to be applied, it is necessary to first evaluate and resolve the issue of whether there should be a direct inheritance relationship between the parties of the transaction.

20.03.1957 dated 1956/12 E. 1957/2 K. In the binding conclusion part of the Unification of Jurisprudence Decision dated 20.03.1957 and numbered 1956/12 E. 1957/2 K., it is stated that it has been decided that “In cases where the shareholder of the joint property assigns his share to the husband and wife, husband and wife, children or relatives, even if there is a contract of sale in form, in reality, in cases where there are purposes other than sales, such as inheritance law or considerations such as grants, the right of interest accepted by the Civil Code in actual sales will not be effective”.
In the explanatory justification part of the aforementioned decision, it is necessary to consider whether or not the right of redemption will be effective in the event of a sale to one’s own children or relatives in accordance with the rules governing inheritance law or other considerations. In such sales to relatives, even if the price, which is an element of the contract of sale, is mentioned, it is not possible to accept it as a mere sale. Because the intention of the trustee here is not to receive the price of the property, but perhaps to take possession of it and replace it due to the relationship of kinship”.
As can be seen, both the binding conclusion and the explanatory reasoning of the decision carefully avoided the use of the term “heir” alone, which expresses a special legal status, and the broader concept of “relative” was also included. In this case, it is not possible to accept that the decision only covers the persons who are direct heirs as of the date of sale.

On the other hand, the aforementioned decision, as a guideline in case of collusion allegation, stated that it is obligatory to determine the purpose of the contract in this case, and that the issue of “the customer being the heir of the dealer” is an indication to be evaluated in determining the nature of the contract. Beyond the fact that the parties to the assignment transaction are related to each other, the fact that they are “heirs” is accepted as an indication in determining whether the purpose of the contract is sale or not, and the concept of “heir” is specifically included at this point.
In the light of the explanations made above, it is seen that the Unification of Jurisprudence Decision dated 20.03.1957 and numbered 1956/12 E. 1957/2 K. is an exception to the rule that the person who is a party to the contract cannot claim collusion in the transaction and cannot prove it with any evidence. In order for the aforementioned decision to be applicable, firstly, the sale does not have to be made directly between the heirs as of the date of sale, and it is sufficient that the parties to the assignment are relatives.

If the assignment is made in the form of a sale between relatives, this time, the issue of whether there is a “purpose related to the law of grant or inheritance” sought by the Unification Decision, in other words, in every assignment made between relatives, it should be sought to prove whether the assignment is made for the purposes related to the law of grant or inheritance according to the nature of the concrete dispute, and it should be considered that it is not possible to use the right of pre-emption with the assignment if it is proved.

As a matter of fact, the same opinion was adopted in the decisions of the General Assembly of Civil Chambers of the Court of Cassation dated 15.12.2010 and numbered 2010/6-572 E. 2010/656 K.; dated 27.04.2011 and numbered 2011/6-38 E. 2011/225 K.; dated 29.04.2011 and numbered 2011/6-164 E. 2011/245 K.; dated 08.02.2012 and numbered 2011/6-762 E. 2012/56 K. and dated 27.06.2012 and numbered 2012/6-239 E. 2012/411 K.
During the discussions held in the General Assembly of Civil Chambers, some members argued that the parties are bound by the contract they have made and that the kinship relationship mentioned in the Unification of Case Law Decision dated 20.03.1957 and numbered 1956/12 E. 1957/2 K. cannot be applied in the concrete case, but for the reasons explained above, this opinion was not adopted by the majority.
When we return to the concrete dispute in the light of the explanations made; the non-suiting A…, who is a shareholder in the immovable subject to shared ownership, is the grandfather of the defendant’s wife and the assignment was made as a birth gift due to the defendant’s newborn baby boy, for this reason, the assignment transaction made in the form of sale is collusive, the real purpose of the parties is a grant and the right of pre-emption cannot be used in the assignment made by grant, 20. 03.1957 dated 20.03.1957 and numbered 1956/12 E. 1957/2 K.

In order to apply the Unification of Jurisprudence Decision numbered 1956/12 E. 1957/2 K., it is sufficient to have a kinship relationship between the parties of the assignment transaction, considering that direct inheritance relationship is not required to be sought, it is contrary to the procedure and the law for the local court to resist the decision to accept the case while the case should be rejected.
The decision of resisting should be reversed for this reason.

CONCLUSION:

With the acceptance of the appeal objections of the defendant’s attorney, it was decided by majority of votes on 27.05.2015 that the decision of resistance shall be reversed for the reasons shown in the Special Chamber’s reversal decision, and the advance appeal fee shall be returned to the depositor, if requested.

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