In Preemption Case, Even If The Defendant Accepts The Case Before The First Hearing, He Is Responsible For The Trial Expenses
14th Civil Chamber 2017/65 E. , 2017/8677 K.
“Case Law Text”
It was decided to approve the above written judgement given by the district court on the case of cancellation and registration of the title deed based on the right of pre-emption between the parties; with the decision of our Chamber dated 21.09.2016 and numbered 2015/17249 Main – 2016/7143 Decision. Since the plaintiff … attorney requested the correction of the decision within the period of time, all the documents in the file were examined and the necessity was considered:
DECISION
The plaintiff, with his petition dated 09.12.2014, requested the cancellation and registration of the 1/8 share purchased by the defendant with the official deed dated 17.10.2014 and numbered 12322, in parcels 125, 132 and 778, in which he is a joint shareholder, based on the right of pre-emption.
Before the preliminary examination hearing dated 21.05.2015, the defendant …’s attorney accepted the case with the petition dated 24.03.2015, provided that they deposit the pre-emption fee.
The defendant seller … did not respond to the lawsuit.
The court decided to dismiss the lawsuit against the defendant … due to passive hostility and to accept the lawsuit against the other defendant …..
Upon the appeal of the judgement by the defendant …, our Chamber decided that “According to Article 22 of the Fees Law, since the statement of acceptance of the defendant’s attorney is before the first hearing, the fee of 1. 497,69 TL, which is 1/3 of the 491,207 TL fee, to deduct 324,50 TL received in advance from 497,69 TL, and to record the balance 173,19 TL as income to the treasury by taking it from the plaintiff”, and to approve the judgement as amended and corrected in accordance with Article 438/7 of the Code of Civil Procedure.
The plaintiff’s counsel requested for correction of the decision.
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1- Although the plaintiff’s attorney has duly appealed the court decision, it has been observed that no positive or negative decision has been made in the confirmation decision of our Chamber regarding the appeal of the plaintiff’s attorney. In the examination made;
According to Article 22 of the Law No. 492 on Fees; if the waiver of the lawsuit or acceptance of the lawsuit or settlement occurs in the first session of the proceedings, one third of the decision and judgement fee is charged, and two thirds if it occurs later.
Paragraph 2 of Article 326 of the CCP does not apply to judgement fees. Because, except for the dismissal of the case, the fee is always charged to the defendant.
In addition, pursuant to Article 6 of the Lawyers’ Minimum Fee Tariff, since the acceptance took place before the fulfilment of the interim decision regarding the collection of evidence, half of the fee determined by the provisions of the tariff should be ruled.
The defendant has purchased a share in the immovable property, and since the plaintiff can only use the pre-emption right through litigation, the defendant is liable for the costs of the proceedings even if the defendant accepts the case before the first hearing.
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In the concrete case, the court decided to recognise the right of pre-emption over the value shown in the title deed and taking into account the statement of acceptance of the defendant’s attorney before the preliminary examination hearing. In this case, considering the above-mentioned articles, it is necessary to decide to take the trial expenses from the defendant and give them to the plaintiff, and to award an attorney’s fee for the benefit of the plaintiff on the basis of the value of the lawsuit for which the fee was paid when the lawsuit was filed, taking into account the statement of acceptance of the defendant’s attorney before the preliminary examination hearing, and to collect fees from the defendant in accordance with Article 22 of the Fees Law No. 492.
While it is necessary to collect the fee from the defendant in accordance with Article 22 of the Fees Law No. 492; It was not deemed correct to decide to leave the trial expenses incurred by the plaintiff on the plaintiff and to decide not to award an attorney fee in favour of the plaintiff, and the decision should be reversed for the reasons that the immovable property numbered 778 parcel was not specified as a number in the paragraph of the judgment, while the decision should be approved with this form,
which was inadvertently changed and corrected by our Chamber with reference to the appeal of the defendant’s attorney, and since the contradiction to the law in the mentioned aspects was understood in the examination made this time, It is necessary to accept the request for correction of the decision of the plaintiff’s attorney and to overturn the previous judgement for the reasons explained.
CONCLUSION:
For the reasons explained above, upon the acceptance of the plaintiff’s attorney’s request for correction of the decision, the decision dated 21.09.2016 and numbered 2015/17249 Main, 2016/7143 Decision of our Chamber regarding the correction and approval of the decision should be REMOVED, the appealed judgement should be REVERSED for the reasons written above, the prepaid fee should be returned to the depositor upon request, it was decided by majority of votes on 21.11.2017.
(Dissenting)
-DISSENTING VOTE-
The lawsuit is related to the request for cancellation and registration of title deed due to pre-emption right.
In his reply petition, the defendant claimed that he accepted the lawsuit, that the plaintiff should deposit the preemption fee to the bank, and that he should not be held responsible for the trial expenses and attorney’s fees.
The court decided to accept the lawsuit based on the sum of the price shown in the contract and the sum of the title deed fees and expenses incurred by the buyer, to collect the judicial expenses incurred by the plaintiff from the defendant, and to collect the attorney fee from the defendant since the plaintiff represented himself by an attorney.
The judgement was appealed by the plaintiff’s attorney in terms of judgement expenses.
Plaintiff exercised the right of pre-emption by filing a lawsuit. The plaintiff deposited the sale price and expenses shown in the title deed within the period given to him by the court, and there is no allegation of collusion in the sale price.
The defendant declared that he accepted the lawsuit within the response period.
Pursuant to Article 734 of the Turkish Civil Code, the right of pre-emption is exercised by filing a lawsuit against the buyer. When the abrogated Law No. 743 Article 659 was in force, the exercise of the pre-emption right was not subject to any form. According to Article 734 of the Turkish Civil Code No. 4721, which entered into force on 01.01.2002, the principle that the right of pre-emption can only be exercised by filing a lawsuit has been introduced. It is not possible to use the right of pre-emption with a statement of will outside the lawsuit in the face of the new legal regulation.
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There is no legal provision prohibiting the purchase of shares from the shared immovable property. It is not possible for the share purchaser to know that the pre-emption right will be asserted against him. There is no legal provision obliging the purchaser to obtain the declarations of the other shareholders that they will not use the pre-emption right before purchasing the shares.
The provisions of the Code of Civil Procedure regarding the costs of the proceedings shall also apply to pre-emption cases. Pursuant to Article 312/2 of the Code of Civil Procedure No. 6100, if the defendant has not caused the lawsuit to be filed by his/her own behaviour and has accepted the plaintiff’s claim in the first hearing of the proceedings, he/she cannot be sentenced to pay the costs of the proceedings.
The defendant cannot be held liable for the costs of the proceedings and, in the meantime, for the attorney’s fee pursuant to Article 312/2 of the CCP, since the defendant has stated that he has accepted the lawsuit in his petition in response to the lawsuit.
For these reasons, since I think that the approval decision dated 21.09.2016 is correct, I cannot agree with the decision of the majority to accept the request for correction of the decision and to overturn the decision of the court of first instance.
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