If There Is No Section Of The Immovable Property Dedicated To The Share Acquired, The Pre-emption Right Can Be Used
General Assembly of Civil Chambers 2017/1761 E. , 2018/407 K.
“Case Law Text”
COURT :
Civil Court of First Instance
At the end of the trial held due to the “cancellation and registration of title deed based on the right of pre-emption” lawsuit between the parties, the decision dated 18.12.2012 and numbered 2011/503 E. and 2012/691 K., which was given by Adana 1st Civil Court of First Instance on the dismissal of the lawsuit, was appealed by the plaintiff’s attorney, and with the decision of the 14th Civil Chamber of the Court of Cassation dated 24.09.2013 and numbered 2013/6323 E. and 2013/12132 K:
“…The lawsuit is related to the request for cancellation and registration of title deed due to the right of pre-emption.
The defendant defended the dismissal of the lawsuit by stating that there was de facto division of the immovable property.
Court decided to dismiss the lawsuit on the grounds of de facto division of the immovable.
Judgement was appealed by the plaintiff’s attorney.
The plaintiff claimed that the shares of Hatice, Süleyman, Rana, Tuğba, Sevim, Sema and Nevin, who are the shareholders of the immovable immovable immovable parcel numbered 5, in which he is a shareholder, were transferred to the defendant through sale on 30.03.2011 with a price of 306.000 TL, the share was actually worth 200.000 TL, the price was shown high in order to prevent the right of pre-emption, and that he wanted to use his right of pre-emption, and requested the registration of the 100/517 share registered in the name of the defendant in the immovable.
Right of pre-emption is a right that authorises other shareholders to purchase this 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 the share.
If the immovable property to which the share subject to the pre-emption case is related is specially divided by the shareholders among themselves and each shareholder uses a certain part, and one of them sells the place he uses and the share corresponding to this place to a third party, it is incompatible with the rule of honest behaviour in Article 2 of the TMK for the plaintiff, who did not claim a right in this place at the time of the seller, to use the pre-emption right due to the sale made in the title deed.
Pursuant to the Supreme Court of Appeals Case Law Unification Decision dated 14.02.1951 and numbered 17/1, the claim of bad faith can be asserted at any stage of the case and should be taken into consideration by the court automatically. In such cases, there is no extension of the defence. İn case of actual sharing, the lawsuit must be dismissed.
In the concrete dispute, 184/517 shares of the immovable property numbered 5 parcel of land are registered in the name of the plaintiff, 100/517 shares are registered in the name of the defendant, and the other shares are registered in the name of third parties. The defendant purchased this share from Hatice Tarhan and her friends on 30.03.2011.
In the sketch attached to the expert report dated 04.05.2012, which was taken as a basis for the judgement, the section marked with (C) is used by the plaintiff as a printing house; the section marked with (A) and (D) is used by some non-suiting shareholders as a kebab shop and garden; the section marked with (B) is used by the non-suiting shareholder as a workplace and house; the section shown in yellow paint is empty and is the section purchased by the defendant; it is also stated that there are shareholders who do not use the ground.
There is no evidence that the shareholders who sold shares to the defendant used the part of the case shown as yellow painted in the sketch attached to the expert report. Therefore, since there is no section on the ground corresponding to the share of the shareholders who sold shares to the defendant, it cannot be said that the plaintiff who uses the pre-emption right is malicious. The rejection of the plaintiff’s pre-emption request for this reason is not appropriate.
While the court should examine the merits of the matter, it was not deemed correct to make a written judgement by leaving aside the explained issues, and the decision should be reversed for this reason…”
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
The General Assembly of Civil Chambers examined the resisting decision and discussed the necessity after it was understood that it was appealed in due time and the documents in the file were read:
The lawsuit is related to the request for cancellation and registration of title deed based on the right of pre-emption.
Defendant’s attorney defended that the immovable property subject to the lawsuit was actually divided and that each shareholder used the land in accordance with the actual division and requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that there was a de facto division on the immovable property.
Upon the appeal of the decision by the plaintiff’s attorney, the decision was reversed by the Special Chamber with the justification shown above, and the court resisted the previous decision.
The plaintiff’s attorney appealed the decision.
The dispute before the General Assembly of Civil Chambers by way of resistance centres on whether the past use of the shareholders on the immovable subject to the lawsuit is in the nature of de facto division, and according to the conclusion to be reached here, whether the plaintiff’s use of the pre-emption right is contrary to the rules of good faith.
Legal right of pre-emption is a right that is exercised through a constructive action, which authorises the other shareholder or shareholders to purchase this share first under the same conditions, in the event that a shareholder sells his/her share on the immovable property in whole or in part to a third party.
As a matter of fact, Article 732 of the Turkish Civil Code (TCC) stipulates that “In the event that a shareholder in shared ownership sells his/her share in the immovable property to a third party in whole or in part, the other shareholders may exercise the right of pre-emption.” With this right, the legislator acts with the aim of preventing the fragmentation of the right held by the persons who have unity of ownership and the entry of third parties into the partnership. It is clear that the legal right of pre-emption is one of the restrictions of the right of transfer. This restriction arising from the law arises with the use of the right. As long as the pre-emption right is not exercised, the sale to the third party will remain current.
However, it should be noted that the actual division is not regulated and there is no regulation regarding the effect of the pre-emption right on the use of the right of pre-emption. This concept has entered our practice with the case law of the Court of Cassation. According to the definition made by the Court of Cassation in its decisions on the subject, de facto division is the situation where the share subject to the legal pre-emption right is divided by the shareholders of the immovable property among themselves and each shareholder uses a certain portion.
In the doctrine, the de facto division in shared ownership is not defined independently from the decisions of the Court of Cassation and is only described as one of the uses of the legal pre-emption right contrary to the rule of good faith (Köylüoğlu, E.: Önalım Davası (Unpublished PhD Thesis), Ankara 2011, p. 93).
According to the definition made in the jurisprudence, three conditions are required for the de facto partition to be in question. The first of these is the existence of an immovable property to which the share subject to the legal pre-emption right is related. Secondly, this immovable property must be divided by the shareholders among themselves. Finally, the third condition is that each shareholder uses a certain portion.
Although there is no legal provision stipulating that the right of pre-emption cannot be exercised in the case of actual division, if the use of the immovable is determined by an agreement reached between all shareholders, or if an actual use of the immovable has been established, and if the shareholders have adopted this situation for a long time, it is a requirement of the rule of honesty, which is defined in Article 2 of the TMK, to protect this formation, which is shared in the record and independent in practice.
This is because Article 2 of the TCC obliges everyone to comply with the rules of good faith when exercising their rights and fulfilling their obligations, and states that abuse of right will not be protected by the legal order as a sanction for non-compliance. As it is known, in all cases where the right is clearly abused, there is a violation of the rule of honesty. This article of the TCC constitutes the legal basis of de facto division (Tunaboylu, M.: Preemption (Şuf’a) Cases, 4th b., Ankara 2008, p.440).
In the concrete case, in the sketch attached to the expert report dated 04.05.2012, which was prepared as a result of the discovery made on 12.04.2012, it was stated that the section marked with (A) was used by Şefika Filağzı, the section marked with (B) was used by Orhan Işık, the section marked with (C) was used by the plaintiff, the section marked with (D) was used by Saide Filağzı and the remaining part was an empty land.
As it can be understood from the sketch attached to the expert report, there is no section on the immovable property dedicated to the share purchased by the defendant. In that case, it is not possible to talk about the existence of a de facto division of the immovable. For this reason, it should be accepted that the plaintiff’s exercise of the right of pre-emption shall not be contrary to the rules of honesty (Article 2 of the Civil Code).
As such, it is contrary to the procedure and the law for the Local Court 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 of resistance should be reversed.
CONCLUSION:
It was unanimously decided on 28.02.2018, with the acceptance of the appeal objections of the plaintiff bank’s attorney, that the decision to resist be DISMISSED for the reasons shown in the Special Chamber’s reversal decision, that the advance appeal fee be returned to the depositor if requested, and that the way of decision correction be open within 15 days from the notification of the decision.
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