In The Registration Case Based On The Sales Promise Contract, Pre-emption Right Can Be Used When The Share Is Registered
14th Civil Chamber 2016/9700 E. , 2017/5230 K.
“Case Law Text”
COURT :Civil Court of First Instance
The above written judgement given by the district court due to the case of cancellation and registration of the title deed arising from the right of pre-emption between the parties; It was decided to be reversed with the decision of our Chamber dated 01.03.2016 and numbered 2015/15936 Esas – 2016/2539 Karar. Since the correction of the decision was requested by the defendant’s attorney within the period of time, all the documents in the file were examined and the necessity was considered:
K A R A R
The plaintiff claimed that the share subject to the lawsuit was forfeitly registered in the name of the defendant with the lawsuit filed based on the sales promise agreement between the defendant and the previous shareholder of the immovable property parcel numbered 2679, of which the plaintiff was a shareholder, and that he acquired the other shares through sale, and that no notification was made, and requested the registration of the share in his name due to pre-emption.
The defendant defended the dismissal of the lawsuit by stating that the statute of limitations had expired, there was a de facto division, and that he acquired some of the shares through exchange.
Court decided to dismiss the lawsuit on the grounds that the prescriptive period had expired.
The judgement was appealed by the plaintiff’s attorney.
The lawsuit is related to the request for cancellation and registration of the title deed due to the right of pre-emption.
Right of pre-emption is a right that authorises the other shareholders to purchase this sold share in the event that a shareholder sells his/her share in the immovable immovable immovable partially or completely to a third party in immovable immovables subject to the provisions of shared ownership. This right arises as soon as the shared ownership relationship is established and becomes exercisable upon the sale of shares.
Registration is mandatory for the birth of rights in rem. Unless the registration, which has an innovative nature, is made, the right in rem cannot be disposable and cannot become public.
Pursuant to Article 705/1 of the TCC, “Acquisition of immovable property is by registration.”
Pursuant to Article 705/2 of the TCC; in cases of inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated by law, ownership is acquired before registration. However, in these cases, the ability of the owner to make disposals depends on the registration of the ownership in the land registry.”
In Article 1022/2 of the TCC, it is explained that the effect of the registration shall start on the date of registration in the journal. In this way, if the right of ownership is registered, it becomes public and becomes assertable against everyone.
“…It should be noted immediately that, in Turkish Law, registration is required in principle for the acquisition of immovable property. As a matter of fact, according to Article 705 of the Turkish Civil Code No. 4721, the acquisition of immovable property is through registration.
On the other hand, the principle of registration is not absolute in Turkish Law. In the presence of certain legal grounds, immovable property may be transferred and acquired even before registration. However, in order to speak of an exception to the principle of registration, this exception must be stipulated by law. The cases of acquisition of immovable ownership not based on registration are set forth in Article 705/2 of the TCC and Articles 54, 105 and 599 of the same Code, and partially in Article 151 of the abrogated Turkish Commercial Code No. 6762. Pursuant to Article 705/2 of the TCC; “In cases of inheritance, court decision, forced execution, occupation, expropriation and in other cases stipulated by law, ownership is acquired before registration. However, in these cases, the owner’s ability to make disposition transactions depends on the registration of the ownership in the land registry.”
Pursuant to Article 705/1 of the Turkish Civil Code, ownership is acquired before registration in cases of inheritance, court decision, forced execution, occupation, expropriation. In this case, the immovable property passes to the new owner together with all the burdens that have been registered or annotated. Provided that he/she is in good faith, a right that is not recognised in the registry cannot be asserted against the person who has acquired the property without registration, in other words, the provision of Article 1023 of the TMK shall also apply to this person.
The person who acquires the property without registration benefits from all the rights and authorisations of an owner before the registration, but these rights and authorisations cannot be asserted against bona fide third parties unless the property right is registered in the title deed, because they have not yet become clear. For this reason, it is of great benefit for this person to register the unregistered property right immediately. Subsequent registration has only a declarative nature (Jale G. Akipek, Turkish Property Law, In rem Rights, Book Two, Property, Second Edition, Sevinç Matbaası, Ankara, 1973, pp.121-122).
However, in acquisitions that are not based on registration, disposals cannot be made unless registration is made, because the person who acquired the immovable without registration does not appear as the owner in the land registry.
As a matter of fact, this issue is stated in Article 705/2 of the Turkish Civil Code as follows: “However, in these cases, the owner’s ability to make disposals depends on the registration of the ownership in the land registry”.
In the concrete dispute, the ownership of the share subject to the dispute in the immovable property numbered 2679 parcel was acquired by the judgement of Gaziosmanpaşa 1st Civil Court of First Instance numbered 2009/556 Main, 2010/563 Decision, which became final on 02.11.2011. The said judgement was executed on 12.12.2011 and the share was registered in the name of the defendant.
In the case subject to the lawsuit, the defendant acquired a share in the immovable property subject to the lawsuit with a judgement to which the plaintiff was not a party. Although the defendant acquired the right of ownership on the date of finalisation of the judgement, he acquired the right of disposition on this share through registration. In the case where the party who acquired the right of ownership before the registration can acquire the right of disposition only after the registration, it is contrary to the principle of “openness of the land registry” regulated in Article 1020 of the TMK to know that the judgement, to which the plaintiff was not a party, has become final and to expect the plaintiff to use his pre-emption right accordingly.
Moreover, since the decisions regarding the registration do not contain a judgement of condemnation to performance and have an innovative nature, they can always be executed by the person who has the right to registration. In this case, the execution of the judgement after the expiration of the periods specified for pre-emption in Article 733/last of the TMK may lead to abuse of right.
In addition, pursuant to Article 732 of the TCC, the right of pre-emption is a right that can be exercised by the sale of the share, and it is not sufficient to conclude a sales contract in order to exercise this right. The sale becomes valid and publicised with the registration of the ownership in the land registry. Since the plaintiff filed this lawsuit on 11.12.2013, after 12.12.2011, the date on which the share subject to the lawsuit was registered in the name of the defendant, the two-year prescriptive period described in Article 733/last of the TMK has not passed.
While the court should make a decision on the merits of the case by considering the mentioned issues, the rejection of the lawsuit on written grounds was not deemed correct, and the judgement should be reversed for this reason.
Since it is understood that a material mistake was made while writing the judgement of reversal, the paragraph 17, which is not relevant to the file, reads as follows: “In the concrete case; the plaintiff İş Bankası attorney initiated the enforcement proceedings against the debtors …Hayvancılık Gıda Maddeleri Tarım Ürünleri Zirai Aletler San ve Tic Ltd. Şti. and Ümmü Sarıhan, which were initiated by the plaintiff İş Bankası attorney and which were initiated against the debtors … Hayvancılık Gıda Maddeleri Tarım Ürünleri Zirai Aletler San ve Tic Ltd. Şti. and Ümmü Sarıhan.
In the enforcement proceedings carried out in the file numbered 2007/3965 E of the Enforcement Directorate; it is understood that the sale of the 8000/12200 shares of the debtors … registered in parcel 725 through the 2007/346 instruction file of the Akhisar 2nd Execution Directorate was requested through the tender; in the forced tender held on 14.05.2009, the immovable share in question was tendered to the creditor İşbank A.Ş. for 13.400 TL, and the tender was finalised on 04.09.2009.” section was removed and the decision had to be reversed for the above reason.
CONCLUSION:
For the reasons explained above, it was decided by majority of votes on 19.06.2017 that the reversal decision of our Chamber dated 01.03.2016, numbered 2015/15936 Main, 2016/2539 Decision should be REMOVED, the judgement should be REVERSED for the reasons explained above, and the prepaid fee should be returned to the depositor upon request.
(Dissenting)
-DISSENTING VOTE-
The dispute centres on whether the starting date of the forfeiture period stipulated in Article 733/last of the TMK is the date of finalisation of the registration judgement or the date of registration of the said judgement to the title deed, in terms of the pre-emption right exercised on the share acquired as a result of the forcible registration case.
It should be noted immediately that the right of pre-emption (shuf’a) was regulated in Articles 658 and 659 of the Turkish Civil Code No. 743, which was repealed by the Law No. 4721, and in the last paragraph of Article 658. In the last paragraph of Article 658, with the provision “the right of pre-emption shall lapse after one month from the day of the chief’s knowledge of the sale and ten years from the date of the annotation to the registry”, periods of one month and ten years are foreseen, and the article dated 26.12.1951 and numbered 1/6 “Like the one-month period in the last paragraph of Article 658 of the Civil Code, the ten-year period should also be applied to legal pre-emption.
The ten-year period starts from the day of the sale of the pre-emptor. The beginning of this period is the date of sale of the share.” With the Unification of Jurisprudence Decision, it was accepted that the aforementioned forfeiture periods shall also be applied in the exercise of the right of legal pre-emption and the beginning of the maximum forfeiture period is the date of sale of the share, and while the application was made in this way, the Turkish Law No. 4721, which entered into force on 01.01.01.
In the Turkish Civil Code numbered 4721, which entered into force on 01.01.2002, the provisions related to the right of legal pre-emption are included in Articles 732, 733 and 734, and in the last paragraph of Article 733, “the right of pre-emption shall lapse three months from the date of notification of the sale to the right holder and in any case two years from the date of sale”.
On the other hand, after it is emphasised in Article 705/1 of the Turkish Civil Code numbered 4721 that the immovable property shall be acquired by registration, in paragraph 2 of the said article, regarding the cases of acquisition without registration and the owner’s right of disposition, it is stated that “in cases of inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated in the law, the property is acquired before registration. However, in these cases, the ability of the owner to make disposition transactions depends on the registration of the ownership in the land registry”.
In line with the aforementioned legal regulations, the precedent jurisprudence of the Court of Cassation, which has become stable, states that “the right of pre-emption can be used in the event that the share is sold to a third party, the maximum period of forfeiture stipulated in the abrogated Law No. 743 and the Turkish Civil Code No. 4721 (10 years in the abrogated Law No. 743 and 2 years in the Law No. 4721, which is still in force) will start from the date of sale;
the acquisition of shares as a result of the registration lawsuit filed based on the sales promise agreement is also a kind of sale, and the court decree replaces the sales contract; since the right of ownership is acquired with the finalisation of the registration decree, the right of shuf’a arises on this date and the beginning of the maximum prescription period is the date of finalisation of the registration decree”.(06.05.1979-672/477)”,
“In the event that the time period is specified in months in the law, the regulation regarding the beginning and end of this period is the provision of Article 161/2 of the procedure. The periods in the shuf’a should be calculated accordingly. (05.12.1990-544/612)”; 6th Civil Chamber of the Court of Cassation; “In the reply of the land registry office, it is written that the sale contract was made on 26.05.1959 and the official sale deed was issued at the residence of one of the parties concerned and registered in the registry on 27.07.1959. The right of shuf’a arises on the date of the official sale deed in the presence of the land registry guard.(20.02.1962-57/1476)”, “Shuf’a shall arise without the need for registration in the land registry regarding the real estate share that is decided to be registered by court judgement.
Since it is understood that the lawsuit was not filed within one month after the finalisation of the registration decision, it should be dismissed.(10.07.1962- 3628/4814)”, “The Şuf’a lawsuit must be filed within one month after the finalisation of the Land Registry Court decision.(15.05.1965-1610/2202)”, “According to Article 633 of the Civil Code, since the right in rem is transferred by court decree, the right of Şuf’a arises with the request for registration. In this respect, the registration to the title deed is not the beginning of the forfeiture period. (30.05.1972-1484/2110)”, “Acquisition of shares with the registration lawsuit filed as a result of the sales promise agreement is also a kind of sale. The court judgement replaces the sales contract.
The duration of the lawsuit shall be taken into consideration according to the date of finalisation of the decision on registration.(15.01.1986-11822/32)”, “The defendant has acquired the share of the share as a result of the finalised forced registration lawsuit. Since the right of ownership passed to the defendant on the date of finalisation of the forcible registration judgement, the right of suf’a arose as of this date.(17.12.1986-12701/14545)”, “Since the defendant acquired the share with the court judgement, he became the owner before the registration in the title deed according to the judgement. From this date onwards, the defendant must use the right of shuf’a within one month following the day the transfer is learnt and in any case within ten years from the date of transfer (21.04.1993-4653/4852)”, “The shuf’a share was acquired as a result of a forced registration case.
Registration to the title deed is not obligatory for the acquisition of the right of ownership. Since the lawsuit was filed within one month after the finalisation of the registration decree, it is in due time.(07.07.1994-7426/7710)”, “Since it is understood that the lawsuit was filed after the finalisation of the forced registration lawsuit and after the expiry of the one-month prescriptive period, it should be dismissed.(06.06. 1995-5559/5754)”, “If the joint share is acquired as a result of the lawsuit filed based on the sales promise agreement, the date of learning that the decision regarding this is finalised is the date of the commencement of the one-month prescriptive period.(15.03.1999-2282/2226)”)(Source: Müslim Tunaboylu / Preemption (Shuf’a) Cases / Expanded 5th Edition / pages 225 to 284)
Again, in the decision of the 6th Civil Chamber of the Court of Cassation dated 13.03.2007 and numbered 395-2647, it is clearly stated that “…as a result of the deed cancellation and registration case filed by the defendant … it was decided to register the shares in the name of the defendant, and the decision, which became final on 26.2.2004, was executed on 13.4.2004. The lawsuit was filed on 7.4.2006. If the share subject to the lawsuit has been acquired by a court decision, the prescriptive period for the exercise of the pre-emption right starts to run upon the finalisation of the court decision.
Pursuant to Article 705/2 of the Civil Code, ownership is deemed to be acquired without the need for registration upon the finalisation of the court decision. Since the two-year prescriptive period has elapsed as explained above as of the date of the finalisation of the judgement at the time of the filing of the lawsuit, the court should decide to dismiss the lawsuit in terms of time…”, it is emphasised that the beginning of the prescriptive period for the right of pre-emption in terms of the share acquired by forfeit registration is the date of the finalisation of the registration decree.
On the other hand, in the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 20.03.2013 and numbered 2012/6-855 Main, 2013/376 Decision regarding the sales made by voluntary auction, “…the dispute that comes before the General Assembly of Civil Chambers through resistance; whether the right of pre-emption can be used against the share sold in accordance with Article 45 of the Law No. 2286; according to the result to be reached here, the plaintiff’s request is to be accepted or not. Before proceeding to the merits of the case, the issue of whether the pre-emption case can be filed against the share subject to the pre-emption right sold to the defendant through voluntary auction has not yet been transferred to the title deed in the name of the defendant has been discussed as a preliminary issue.
Article 732 of the Turkish Civil Code (TCC) numbered 4721 reads as follows: “In the event that a shareholder in shared ownership sells his share in the immovable property to a third party in whole or in part, the other shareholders may exercise the right of pre-emption” and Article 734 of the same Code reads as follows: “The right of pre-emption is exercised by filing a lawsuit against the buyer.
The owner of the right of pre-emption is obliged to deposit the sale price and the title deed expenses incurred by the buyer in cash to the place to be determined by the judge within the period determined by the judge before the registration of the share in his name is decided”. As can be seen, in the relevant articles regulating the “right of pre-emption”, “sale” is always mentioned, and it is emphasised that the right of pre-emption arises upon the sale of the share.
In other words, in order to exercise the pre-emption right, it is sufficient to establish the sales contract as valid and there is no need to wait for the registration of the share in the title deed in the name of the defendant. As a matter of fact, the same point was accepted in the decision of the YHGK dated 06.02.1957 and numbered 1957/6-1-6. In addition, the share subject to the lawsuit could not be registered in the name of the defendant due to the injunction imposed due to the pending lawsuit. For the reasons explained, it has been accepted by the majority that there is no pre-emption problem…”, it has been accepted that the right of pre-emption can be used from the moment a valid sales contract is concluded.
The jurisprudence of the 6th Civil Chamber of the Court of Cassation regarding the voluntary tender is as follows: “The share with a shuf’a was tendered to the defendant according to the provisions of Law No. 2490. In this case, the beginning of the forfeiture period is the date on which the plaintiff learnt that the tender was finalised (03.05.1968-4635/2285).”, “It is understood that the immovable property to which the share of the share was related was put out to tender on 13.10.1993 in accordance with Article 45 of the Law No. 2886 and the share was tendered to the defendant at the end of the tender.
Pursuant to Article 225 of the Code of Civil Procedure, the contract of sale is concluded with the tender of the seller. It is sufficient to learn about the sale in order to use the right of shuf’a.(11.04.1994-3927/420)”, “The contract of sale is completed with the voluntary tender.(03.04.1996-3210/3778)” and later as “In sales made by tender, the period of forfeiture starts from the date of registration to the title deed, not the date of finalisation of the tender.(01.12.2008-10291/3429)”. (Source: Müslim Tunaboylu/ Preemption (Shuf’a) Cases/ Expanded 5th Edition/ Pages 162 to 280)
The point that should be stated immediately here is; it is undoubted that the ownership cannot be acquired through voluntary auction, and the right in rem can only arise through registration; and the case law of the 6th Civil Chamber of the Court of Cassation numbered 01.12.2008-10291/3429 mentioned above does not constitute a precedent for the cases where the ownership is acquired before registration (Article 705/2 of the TMK).
Therefore, when the above-mentioned legal regulations and the precedent case law of the Court of Cassation are evaluated together, it is necessary and sufficient to make a valid sale transaction in order to exercise the right of pre-emption, as the sale is mentioned in Articles 732, 733 and 734 of the TMK regarding the right of legal pre-emption. Pursuant to Article 705/1 of the same Law, the acquisition of immovable property shall be by registration. Again, in parallel with this provision, Article 1022 of the same Law states that real rights shall arise upon registration in the registry.
However, the exceptions to the aforementioned provisions are the cases of acquisition without registration; these cases are listed in Article 705/2 of the TCC and it is emphasised that the ownership shall be acquired before registration, and in the following provision, it is explicitly stated that registration is mandatory for the owner to perform the disposition transactions.
Undoubtedly, this obligation is stipulated not for the owner to acquire the right of ownership, but for the owner to be able to perform disposals. In other words, it is clear that the aforementioned provision is related to the owner, and it is not possible to talk about a disposition transaction related to the property right for persons other than the owner of the property right.On the other hand, Article 28 of the Execution and Bankruptcy Law states that “In the event that a judgement is rendered in favour of the plaintiff in immovable property cases, the court shall notify the land registry office of the judgement without the need for the plaintiff’s request. The relevant department shall annotate this fact in the record of the immovable property that has been judged.
This annotation shall be subject to the provisions of the second paragraph of Article 1010 of the Turkish Civil Code. If the judgement rendered on the immovable property case becomes final against the plaintiff in the future, the court shall immediately notify the land registry office of this judgement”, and the existence of the registration judgement, by annotating the land registry before the date of finalisation, provides publicity in accordance with the provision of Article 1010/last of the TMK that “the restrictions on the power of disposition can be asserted against the owners of the rights subsequently acquired on the immovable property by annotation”, and in parallel with the results of registration regulated in Articles 1022, 1023 and 1024 of the same law.
It is clear that the registration regulated in Articles 1022, 1023 and 1024 of the same law will produce results in parallel with the results of the registration.
Therefore In Article 733/last of the Turkish Civil Code No. 4721, it is clearly stipulated that the right of pre-emption shall lapse two years after the sale, in other words, in the text of the law, the sale is taken as the beginning of the two-year pre-emptive period and registration is not obligatory, Considering that the court decree regarding the registration of shares issued as a result of the deed cancellation and registration case based on the real estate sales promise agreement replaces the sales contract, and as of the date of the finalisation of the registration decree, the person in whose favour the registration decision was issued acquired the right of ownership before the registration (Article 705/2 of the Civil Code).
When it is taken into consideration, it is concluded that in the event of becoming a shareholder with such a forfeited registration judgement, the right of pre-emption shall lapse after two years from the date of finalisation of the judgement, i.e. the date of acquisition of ownership.
In the concrete case, the basis of the 1/15 share, which was forfeitly registered on behalf of the defendant on 12.12.2011, is the judgement of Gaziosmanpaşa 1st Civil Court of First Instance dated 21.10.2010 and numbered 2009/556 main, 2010/563 decision numbered, and this judgement became final on 02.11.2011, and the case at hand was filed on 11.12.2013. 2013, more than two years have elapsed between the date of finalisation of the judgement of forfeited registration and the date of the lawsuit, and the right of pre-emption has fallen due to the forfeiture period pursuant to Article 733/last of the Turkish Civil Code;
As for the shares subject to the other lawsuit, since the acquisition of the shareholder (in other words, the assignment to the shareholder) will be in question, there is no inconsistency in the court’s decision to “dismiss the lawsuit” by determining and adopting that the plaintiff, who is the other shareholder, does not have the right of pre-emption, and I cannot agree with the decision of the majority with the opinion that the decision of the local court should be approved by accepting the defendant’s request for correction of the decision, considering that the decision was made in accordance with the law and case law.
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