The Value Difference In Zoned Lands Should Be Determined And Proportioned And Money Should Be Distributed In This Way
General Assembly of Civil Chambers 2017/2196 E. , 2017/1112 K.
“Case Law Text”
COURT :
Magistrate Law Court
At the end of the trial held due to the “dissolution of the partnership” lawsuit between the parties, upon the request of the plaintiff’s attorney and some of the defendants’ attorneys for the appellate review of the decision dated 18.06.2014 and numbered 2010/180 E. 2014/967 K., which was given by Malatya 1st Civil Court of Peace on the acceptance of the lawsuit and the dissolution of the partnership by sale, with the decision of the 14th Civil Chamber of the Court of Cassation dated 04.03.2015 and numbered 2014/12865 E., 2015/2378 K;
(…The lawsuit is related to the request for dissolution of the partnership.
The attorneys of the defendants … and … requested firstly the division of the immovable in kind, and in case of a sale decision, the elimination of the shareholding by establishing a ratio by taking into account the values of the cadastral parcels of the immovable before the development.
Defendants … and the Treasury defended the rejection of the lawsuit.
In their petitions dated 22.01.2014, the attorneys of the defendants …, … and … and the defendants … and … requested the distribution of the sale price by taking into account the values of the cadastral parcels of the immovable according to their status before the development.
The court accepted the lawsuit and decided to resolve the partnership in the immovable property numbered 408 block 323 parcel of land subject to the lawsuit by selling it through a public auction and to distribute the sale price according to the option (C) specified in the report dated 05.06.2014 by the civil engineer expert.
The judgement was appealed by the counsel for the plaintiffs, the counsel for the defendants …, … and … and the counsel for the defendants … and …..
1- According to the judgement, the collected evidence and the entire file content, the separate appeals of the attorneys of the defendants who appealed the judgement were not deemed appropriate and should be rejected.
2- As for the appeal objection of the plaintiffs’ attorneys;
In the event that the shareholding is eliminated through sale, if there are integral parts such as buildings, trees, etc. on the immovable property subject to the lawsuit, they must be sold together with the land. However, if there is an annotation on the title deed stating that the improvements belong to some of the shareholders, or if all the shareholders are unanimous on this issue, and if the improvements cause an increase in the value of the land, the values of the land and the improvements are determined separately as of the date of the lawsuit in order to determine this increase.
These values are added together and the total value of the immovable property is found. The percentage (%…) of this value is determined by establishing a percentage (%…) ratio. The division of the price to be obtained at the end of the sale is also made on the basis of these ratios. Portion corresponding to the encumbrance shall be distributed to the shareholder who owns the encumbrance, and the remaining amount shall be distributed to the shareholders (partners) in proportion to their shares.
In the concrete case, it is understood that the immovable property numbered 408 block 323 parcel was registered to the title deed on 02.05.2008 as a result of the zoning application and the lawsuit was filed on 01.02.2010.
In the expert report dated 05.06.2014, which is based on the judgement, it is seen that how the sale price should be distributed between the parties is calculated by showing three different options.
İn the expert report, it was seen that the sale price was calculated in option (A) according to the current actual situation, in option (B) according to the values of the cadastral parcels based on the pre-zoning formation of the immovable, and in option (C) by establishing a ratio according to the calculation of the distribution of the increase in the value of the cadastral parcel values between the previous owners of the pre-zoning cadastral parcel values among all shareholders in proportion to their shares.
Although the court made a judgement by considering option (C) from the calculation, it was not deemed correct to make a decision in the written manner, while the sales price should be distributed according to option (A) in the expert report, taking into account the current zoning status of the immovable property as of the date of the lawsuit in the cases for the elimination of the shareholding, and therefore the judgement should be reversed…)
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of the General Assembly of Civil Chambers 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 the elimination of the partnership of the immovable property numbered 408 block 323 parcel.
The attorneys of the defendants …, …, …, …, … and … and … and … and … have requested that the immovable be firstly divided in kind, and in case of a sale decision, the sale price of the immovable be determined by taking into account the values of the cadastral parcels before the development, and that a decision be made to pay the parties according to this ratio.
Defendant Municipality and Treasury attorneys defended the rejection of the lawsuit.
The Local Court accepted the lawsuit and decided to eliminate the partnership in the immovable property numbered 408 block 323 parcel of land subject to the lawsuit by sale through a public auction procedure and to distribute the sale price in accordance with the percentage found by proportioning the amount found by adding the amount found by summing the values of the immovable properties before the dispute and the amount of their shares from the increase in value due to the dispute of the immovable properties to the total value of the immovable property.
The judgement was appealed by the attorneys of the plaintiffs and some of the defendants, and it was reversed by the Special Chamber with the justification written in the title section above.
Court decided to resist on the grounds that if there is a difference in value between the land plots that have been levelled due to the zoning application, then the value of each parcel should be determined separately and the distribution of the money obtained by establishing a ratio should be made accordingly, and if the distribution is made in proportion to the shares of the shareholders, an unlawful result will arise against the shareholders who are the owners of the valuable immovable property.
The resisting judgement was appealed by the plaintiffs’ counsel.
The dispute, which came before the General Assembly of Civil Chambers through resistance, centres on whether the sale price of the immovable property subject to the lawsuit will be distributed to the owners in proportion to their shares or whether the cadastral parcels constituting the zoning parcel will be distributed by having them appraised separately according to their location and condition before the zoning.
First of all, it is useful to set forth the legal regulations, legal concepts and institutions related to the subject.
Article 698 of the Turkish Civil Code No. 4721 regulates how the immovables subject to shared ownership shall be distributed. Accordingly, “Unless there is an obligation to continue the shared ownership due to a legal transaction or due to the fact that the shared property is dedicated to a permanent purpose, each of the shareholders may request the sharing of the property. The right to request sharing may be limited by a legal transaction for a maximum period of ten years. Agreements regarding the continuation of shared ownership in immovable property are subject to official form and may be annotated in the land registry. A request for sharing cannot be made at an inappropriate time.”
One or more of the shareholders may file a lawsuit for the elimination of shareholding against the other shareholders. A lawsuit for the elimination of shareholding consists of two phases: the investigation of how the partition will be made and the partition. Partition may be in kind or by sale. In the case of sharing in kind, it is done by giving a certain portion of the property subject to the lawsuit to each shareholder.
Zoning applications are made in order to plan, design and implement public services within the municipality and to make the city in accordance with the principles of “urbanism science”. During the zoning application, cadastral parcels owned by other persons are brought together completely or partially or divided into large parcels. If these new parcels formed by zoning are allocated to more than one person, a shared ownership is formed due to the law. When it is requested to eliminate the shareholding in the shared ownership formed by zoning, it should be decided to eliminate the partnership through sale, since it is not possible to share in kind.
In immovables subject to shared ownership, the rule is to distribute the sale price to the shareholders in proportion to their shares. However, if there is a difference in value between the immovable properties that are zoned and the immovable properties that have been levelled, the absolute application of this rule will lead to results that are not in accordance with equity and justice. Because, if the sale price is distributed according to the shares, the owner of the less valuable immovable will gain unfair advantage to the detriment of the owner of the more valuable immovable.
In this case, requesting the distribution of the sale price of the zoning parcel according to the shares will constitute an abuse of right and will lead to the transfer of the assets of the more valuable parcel owners to the less valuable parcel owners. In order to prevent an unfair situation, a distribution should be made based on the principle that each cadastral parcel benefits from the sale price in proportion to the value it adds to the zoning parcel. Because the protection of property is essential in zoning law.
In that case, the court should determine the value of each of the cadastral parcels subjected to the zoning application separately in terms of their location, taking into account that they are on the front, rear and side fronts before the zoning, and find the ratio of these to the sales price of the entire zoning parcel, and the sales price should be allocated according to this ratio. As a matter of fact, the decisions of the General Assembly of Civil Chambers dated 12.10.1968 and numbered 1966/6-651 E., 1968/654 K.; dated 13.10.1971 and numbered 1967/6 E., 1971/587 K. reached the same conclusion.
As for the concrete case, the immovable property for which it is requested to eliminate the shareholding by sale is the immovable property numbered 408 block 323 parcel, which was created by zoning application in accordance with Article 18 of the Zoning Law No. 3194 on the parcels consisting of 408 block 76, 142, 143, 219, 262 and arc of the cadastre, and the Administrative Court decided to reject the lawsuit filed for the cancellation of the zoning application, and this decision was approved by the Council of State and became final.
It is understood from the distribution table based on the registration that the shares were determined according to the surface area during this formation, and the monetary value of the cadastral parcels was not taken into consideration. However, the experts expressed the opinion that the cadastral parcel numbered 142 belonging to the defendants is more valuable and has a road frontage, and that the other parcels subjected to zoning application, including the parcel numbered 148 belonging to the plaintiffs, are less valuable immovables that do not have a street frontage and are in the nature of empty land.
Considering the way the shares of the immovable subject to the lawsuit were determined and the difference in value before the zoning, the distribution of the sale price of the immovable in proportion to the shares will be contrary to the principle of benefiting from each cadastral parcel in proportion to the value it adds to the zoning parcel. In that case, since it is accepted to distribute the sales price that will correspond to the land among the land owners not in proportion to their shares, but in proportion to the value of each cadastral parcel before the zoning application, it is appropriate to resist the decision of the court to distribute the sales price according to this basis.
During the discussions held in the General Assembly of Civil Chambers, it was argued that a new parcel subject to shared ownership was formed with the zoning application and that the amount of the share of each shareholder in the immovables subject to shared ownership was determined, not the place corresponding to the share of each shareholder, and therefore, the sale price should be distributed in proportion to their shares and that the decision of reversal was appropriate, but this opinion was not adopted by the majority of the Board.
However, the Special Chamber has not examined the other appellate objections regarding the amount of the judgement on the elimination of the partnership of the immovable property through sale and the distribution of the sale price to the shareholders, and the file should be sent to the Special Chamber for this examination.
CONCLUSION :
For the reasons explained above, since the resistance was found appropriate, it was decided by majority of votes in the second meeting held on 14.06.2017, with the way of decision correction closed, to send the file to the 14th LAW CHAPTER for the examination of other appellate objections regarding the amount.
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