Pre-emption Right Cannot Be Used In Transfers Made Pursuant To A Construction Contract
14th Civil Chamber 2016/18975 E. , 2017/1792 K.
“Case Law Text”
COURT :
Civil Court of First Instance
Upon the reversal of the judgement given by the court as a result of the deed cancellation and registration case between the parties, the case file regarding the decision of the local court to resist was sent to our Chamber in accordance with the second paragraph of the Provisional Article 4 added to the Civil Procedure Law No. 6100 by the Law No. 6763, which entered into force on 02/12/2016, and the file was examined and considered.
With the Decision of our Chamber dated 05/11/2013 and numbered 2013/8211 Esas – 2013/13805, it was decided to overturn the judgement of the local court dated 27.02.2013 and numbered 2012/431E. 2013/77 and the court resisted its first judgement with its decision dated 25.12.2014 and numbered 2014/339-407.
The decision of resisting was appealed by the plaintiff’s attorney.
In the petition, the plaintiff requested cancellation of the title deed based on the pre-emption right.
In its reply, the defendant defended the dismissal of the lawsuit by stating that a construction contract in return for flats was signed between the defendant company and the defendant cooperative and individuals, that the legal pre-emption right cannot be used, that the purpose of the transfer from the title deed was to fulfil the obligations in the contract, that the shareholders did not really intend to sell their shares, but transferred from the title deed with the intention of owning a house.
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The Court decided to dismiss the lawsuit on the grounds that “… the transfer made was not for sale, but a transfer made pursuant to the construction contract, therefore, the right of pre-emption cannot be used according to Article 732 of the Turkish Civil Code and Article 2 of the Turkish Civil Code with the title of honest behaviour …..”.
The first judgement of the court was appealed by the plaintiff’s attorney.
In the reversal decision of our Chamber dated 05/11/2013 and numbered 2013/8211 Main – 2013/13805 Decision, “…in the immovable property numbered 3244 block 20 parcel subject to the lawsuit, the plaintiff
He has 27/280 shares due to the sale on 04/02/2011; the defendant became a shareholder in the immovable by purchasing the share of the non-suiting shareholder … Housing Construction Cooperative on 13/02/2012. Between the defendant and the defendant co-operative and other landowners who acquired shares in the disputed immovable property, a construction contract in return for land share was arranged at the … 8th Notary Public on 06/01/2012 with the date of 06/01/2012 and the journal number 1130.
In this contract, it has been agreed that a building will be constructed on the immovable property numbered 7208 island 6 parcel numbered 6; in article 7/a, 42 flats will be given to the landowners, and in article 21, it has been agreed that the landowners will transfer all of the land subject to the contract (7208 island 6 parcel numbered 6) and all of the land deeds on 3244 island to the contractor together with their rights and debts.
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It is seen that the subject of the contract is 7208 block 7208, parcel numbered 6, and the independent sections to be left to the land owners and the contractor are located on this immovable. Therefore, there is no provision regarding the transfer of the parcel numbered 20 in return for the independent sections to be given to the landowners in the building to be constructed on the parcel numbered 6.
In other words, it is understood that the sale between the defendant and the non-suiting shareholder is a real sale, since the transfer of the parcel numbered 20 was not agreed in return for the performances in the immovable property numbered 6 parcel. İn this case, since the conditions for pre-emption have occurred, the court should give the plaintiff a period of time to deposit the total amount of the immovable property price and title deed fees and expenses, and a decision should be made according to the result, but the decision was reversed on the grounds of ….”……..
In the resisting decision dated 25.12.2014 and numbered 339-407, the Court resisted its first decision on the grounds that the transfer of the share is a transfer made in accordance with the construction contract, therefore, it is understood that the pre-emption right cannot be used according to Article 732 of the Turkish Civil Code and Article 2 of the Turkish Civil Code, which is titled honest behaviour.
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Although the decision of resisting was sent to the General Assembly of Civil Chambers for examination, pursuant to the second paragraph of the Provisional Article 4 added to the Code of Civil Procedure No. 6100 by the Law dated 6763 adopted on 24/11/2016, the decision of resisting was sent to our Chamber for examination.
Upon the examination of the decision of resistance by our Chamber, although it was decided to overturn the decision of the local court regarding the dismissal of the case with the Decision dated 05/11/2013 and numbered 2013/8211 Esas – 2013/13805, it was understood that the provisions of the construction contracts in the file were erroneously evaluated together with other evidence, our decision of reversal was based on erroneous evaluations and the court’s decision of resistance was appropriate.
For the reasons explained, the decision of the local court to resist should be upheld.
CONCLUSION:
1-Since it is understood that the decision of the court to resist is appropriate, the decision of our Chamber dated 05/11/2013 and numbered 2013/8211 Main – 2013/13805 Decision regarding the reversal of the aforementioned decision of the court is REMOVED,
2- It was unanimously decided on 09.03.2017 that the appeal objections of the plaintiff’s attorney were rejected and the judgement was APPROVED for the reasons explained above, and the approval fee written below should be charged to the appellant.
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