If A Hidden Defect Appears After The Sale Of Immovable Property, The Buyer May Rescind The Contract
General Assembly of Civil Chambers 2017/664 E. , 2017/573 K.
“Case Law Text”
COURT :
Civil Court of First Instance
At the end of the trial held due to the lawsuit between the parties for “termination of the immovable sales contract due to defect, material and moral compensation”; The decision dated 20.09.2012 and numbered 2011/110 E., 2012/365 K., which was given by Istanbul Anatolian 11th Civil Court of First Instance (closed Üsküdar 2nd Civil Court of First Instance) on the rejection of the lawsuit, upon the appeal of the plaintiff’s attorneys, with the decision of the 13th Civil Chamber of the Court of Cassation dated 06.11.2013 and numbered 2013/15624 E., 2013/27427 K;
“…The plaintiff stated that the defendant sold the flat in the parcel no. 39 to him on 30.06.2010 for 102.000,00 TL, that the defendant had been living in this flat on the ground floor for years, that although he undertook that there was no dampness and flooding, the walls started to swell due to rainwater, that the defect in the flat turned out to be a hidden defect and that the total damage and loss was 25. 000,00 TL, the expert report received as a result of the determination was notified to the defendant, but the defendant did not object to the report, claiming that, without prejudice to their rights regarding the surplus, 30. 60.2010 dated 30.60.2010, without prejudice to the rights related to excess, to return the sale price of 102.000,00 TL with the legal interest to be accrued from the date of payment, to deduct a certain amount from the sale price, not less than the amount determined in the determination report, to collect from the defendant 5.000,00 TL pecuniary damages including real estate commission, title deed expenses, mortgage loan interest, attorney’s fees, treatment expenses, and 5.000,00 TL non-pecuniary damages for the non-pecuniary damages and 5.000,00 TL non-pecuniary damages for the non-pecuniary damages suffered.
The defendant defended that the flat subject to the lawsuit is a semi-basement floor and that the main immovable was built 35 years ago according to the zoning and construction technique of the year it was built, that the plaintiff visited the flat 3 times under the supervision of the real estate agent, and that there were no issues hidden from the buyer.
The court, on the basis of the expert report, decided to dismiss the lawsuit on the grounds that the defendant was not responsible for the lack of foundation bunding insulation and drainage channel of the building and for hidden or open defects; the judgement was appealed by the plaintiff.
The basis of the lawsuit is Article 202 of the Code of Obligations through Article 217 of the Code of Obligations. According to Article 202 of the Code of Obligations, “When the defect of the goods sold under the warranty of the seller becomes known, the buyer is free of choice; he may either declare that he is ready to reject the goods and sue for the termination of the sale, or he may detain the goods and sue for the deduction of the price in return for the deficiency of its value. If the circumstances do not justify the termination of the sale upon the buyer’s rejection of the goods, the judge may be satisfied with the deduction of the sums. If the deficiency in the value is equal to the semen of the sold goods, the buyer may only demand the termination of the sale.” As explained, pursuant to the provisions of the warranty against defects, the buyer may use the right of rescission when the defect is understood, or may request a price reduction. Since the hidden defect of the flat subject to the lawsuit is fixed by both the detection report and the expert report obtained as a result of the discovery made by the court, the court should evaluate the plaintiff’s request for termination, which is the primary request of the plaintiff, and make a decision in accordance with the result to be obtained, but the decision to dismiss the lawsuit in writing with contrary opinions is contrary to the procedure and the law…”
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 to resist was appealed in due time and the papers in the file were read, the General Assembly of Civil Chambers discussed the necessity:
The lawsuit is related to the requests for rescission from the contract of sale of immovable property due to defect, and if not, reduction of the price and material and moral damages.
The plaintiff’s attorney stated that the defendant sold the ground floor flat he personally used in Üsküdar to the plaintiff on 30.06.2010 for 102.000,00-TL, the flat was delivered on 05.08. 2010, during the pre-contract negotiations, the client asked the defendant whether there was dampness in the apartment, the defendant declared and undertook that he had lived in the apartment for many years and that there was no dampness or flooding, but in the first rain, the walls of the apartment were damp from the rainwater and the paint blistered, the client reported the situation to the defendant, but the defendant said that there was nothing to do, this situation was notified to the Üsküdar I. This situation was determined by the 2010/101 D.İş file of the Üsküdar Civil Court of Peace, the expert declared that the damage and loss was caused by hidden defect; the repair cost was determined as 25.000,00-TL and the elimination period was determined as 2,5 months and 30.06. 2010 dated 30.06.2010 dated sales contract and the return of the sales price to his client together with the legal interest to be processed from the date of payment, or the deduction of a certain amount from the sales price within the equitable measures, not less than the amount determined by the expert in the determination file, and the collection of material and moral damages.
The defendant attorney stated that his client lived in the immovable property with his aunt, his wife and two children for 2.5 years, that the independent section was a semi-basement floor apartment of the building built according to the construction conditions and technique 35 years ago, that the apartment was offered for sale through the real estate broker, that the buyer plaintiff visited the apartment three times and nothing was hidden from him, that the plaintiff had the apartment painted and moved in the day before the sale, that the basement floor of the immovable property, the contact of the outer walls with the soil, The defendant defended the dismissal of the lawsuit by stating that the lack of protective drainage and wall sheathing cannot be considered as a hidden or open defect, the buyer bought the property in this location knowingly and visually, the problem experienced by the plaintiff is a problem to be solved entirely within the framework of condominium ownership, there is no problem with the interior of the apartment, the waterproofing of the exterior walls, which are considered common areas, can be done with the decision of the apartment building management or the board of condominium owners, and the responsibility is according to the land share.
The court stated that the flat subject to the lawsuit was the basement floor of a very old building, that the buyer should consider and foresee that the building could get damp and flood under the conditions of our country when purchasing such an immovable property, and that the defendant did not provide sufficient evidence that the defendant misled and deceived the plaintiff before the purchase, It was decided to dismiss the lawsuit on the grounds that the statements of the witnesses did not constitute sufficient evidence since they were very close relatives of the plaintiff, and that there was no reason for cancellation in the sale transaction considering the statements of the defendant witnesses who made statements to the contrary and the location of the building and the sale price, and the decision was reversed by the Special Chamber upon the appeal of the plaintiff’s attorney, with the reasoning in the title section above.
The court decided to resist by expanding the previous justification.
The decision of resisting was appealed by the plaintiff’s attorney.
The dispute before the General Assembly of Civil Chambers by way of resistance centres on whether the independent section subject to the sale has a hidden defect, whether the defendant is responsible for the damage in accordance with the provisions of the warranty against defects, and whether the plaintiff’s request for rescission of the contract should be evaluated according to the result to be reached here.
The provisions of the Code of Obligations (BK) numbered 818 (abrogated), which was in force on the date of the incident, should be applied to the dispute.
The contract of sale is defined in Article 182 of the Code of Obligations as “sale is a contract whereby the seller undertakes the obligation to deliver the goods to the buyer and transfer the ownership to him in return for the price demanded by the seller”. The contract of sale is a synallagmatic contract, in other words, a contract that imposes mutual obligations on both parties. In full bilateral contracts, both parties undertake a principal act and various ancillary and secondary acts against each other. In other words, due to their nature, these contracts make each of the parties obligatorily creditor and debtor. Each party incurs an obligation to obtain the counter performance. In addition to the obligation of the seller to deliver the goods and transfer the ownership of the goods to the buyer, the seller also has the obligation to ensure that the goods are free from defects.
At this point, it is useful to emphasise the concepts of “defect and warranty against defect” which constitute the basis of the dispute:
The legal regulation regarding the defect is included in Article 194 of the Code of Obligations numbered 818, which should be applied in terms of the dispute subject to the lawsuit. In this article, it is stated as follows: “The seller undertakes to the buyer that the goods sold shall be free from defects which, due to a material or legal reason, destroy or significantly diminish the value or the intended benefit of the goods sold. Even if the seller does not know the existence of these defects, he is liable for them.”
In the doctrine, defect is defined as the absence of the promised qualities at the time of the damage, in other words, the absence of a feature that should be present or the presence of a defect or deficiency that should not be present, or the state of not having the necessary qualities expected from it in accordance with the rule of honesty, and is classified as material, legal or economic defect. Material defect is the presence of a material defect in a good (for example, if the good is torn, broken, damaged, stained, etc.). Legal defect is a legal restriction on the use of the goods (such as the existence of restrictions such as pledge, lien, usufruct right on the goods). Economic defect is a deficiency in the economic characteristics of the goods.
Another classification of defect is made according to whether the defect is open or hidden. An open defect is a defect that can be detected immediately at first or by a superficial examination. A defect that cannot be detected by inspection, which is required by the situation, is a hidden defect. If the buyer is not obliged to investigate hidden defects, he/she should notify immediately as soon as the defect occurs (DOMANİÇ, H.: Turkish Commercial Code Commentary, C.I, Istanbul 1988, p.155;YAVUZ, N.: Defective Performance, 2.b., Ankara 2010, p. 107;KARAKAŞ, C.F.: Duration and Form of Defect Notice in Commercial Sales, XXII. Commercial Law and Court of Cassation Decisions Symposium, Ankara 2006, p.172). If the buyer has been misled, in other words, if the defect in the goods has been deliberately concealed from him, the solution envisaged by the Law requires an aggravated liability for the seller. As a matter of fact, according to Article 200 of the Code of Obligations No. 818 (Article 225 of the Turkish Code of Obligations No. 6098), the seller who has misled the buyer cannot escape liability by claiming that the defect was not notified to him in time.
After these general explanations regarding defects, it should be noted that the seller’s liability for defects is also called “warranty against defects”. In the event of the fulfilment of the conditions of the warranty against defects, the buyer is granted optional rights under Articles 202 and 203 of the Code of Obligations. Accordingly, the buyer may rescind the contract or request a reduction of the price or replacement of the goods with a defect-free equivalent. In the regulations on consumer protection, it has also been adopted that the buyer has the right to request the repair of the goods (6502 p. Law on the Protection of Consumers Art. 11/c).
It is not necessary for the seller to be defective in order for the rules regarding the defects to be applied. Indeed, according to the second paragraph of Article 194 of the Code of Obligations, the seller is liable for defects even if he does not know of their existence.
If the buyer has fulfilled the burden of notice, the burden of proof that the buyer knew or should have known about the defects belongs to the seller. Because in this way, the seller rejects a responsibility that legally falls to him.
As for the concrete case; the plaintiff, claiming that “hidden defects” appeared later on in the independent section subject to the immovable sale contract concluded between the parties, firstly notified that he returned from the sales contract. The fact that the independent section subject to the lawsuit has hidden defects is fixed by the expert report submitted to the evidence detection file and the expert report prepared after the discovery made by the court. The plaintiff has also used his right of choice arising from Article 202 of the Code of Obligations to withdraw from the contract due to the hidden defect. As such, it is not correct to decide to dismiss the case on the grounds that the defendant cannot be held responsible for the hidden defect, while the court should evaluate the plaintiff’s request for return, which is the primary request of the plaintiff, and decide according to the result to be obtained.
Therefore, considering these material and legal facts, it is against the procedure and the law to resist the previous decision, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
Therefore, the decision to resist should be reversed.
CONCLUSION:
It was unanimously decided on 29.03.2017, on 29.03.2017, with the acceptance of the appeals of the plaintiff’s attorney, that the decision of resistance be reversed for the reasons shown in the Special Chamber’s reversal decision, and that the pre-appeal fee be returned to the depositor upon request, with the way of decision correction being open.
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