If The Sale Price Is Corrected Before Filing A Lawsuit, The Preemption Right Should Be Determined Accordingly
14th Civil Chamber 2019/3186 E. , 2020/4622 K.
“Case Law Text”
COURT :Civil Court of First Instance
The above written judgement given by the district court for the cancellation and registration of the title deed based on the pre-emption right between the parties; It was decided to be approved by the decision of our Chamber dated 07/03/2019 and numbered 2016/16109 Esas, 2019/2079. 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:
DECISION
The lawsuit is related to the request for cancellation and registration of title deed based on the right of pre-emption.
With the petition dated 03.12.2015, the plaintiff’s attorney stated that the defendant purchased shares in immovable properties numbered 2347, 7149 and 7150 parcels in … Village, where his client also has a share, and requested the cancellation and registration of the title deed of the shares in question on behalf of his client, claiming that the defendant used the right of pre-emption on the shares purchased by the defendant.
In his reply petition, the defendant attorney stated that the total price of the shares purchased by his client on 24.11.2015 was 58.000,00TL, that this amount was sent to the attorney of the sellers by bank transfer, that the error made in the official sales contract was corrected on 25.11.2015 by applying to the tax office before the pre-emption lawsuit was filed, that the actual sales price was 58.000,00TL, and defended the rejection of the pre-emption lawsuit requested over 9.240,00TL.
The court decided to accept the pre-emption case over 9.240,00TL.
Upon the appeal of the defendant’s attorney, it was decided to approve the judgement with the decision of our Chamber dated 07.03.2019 and numbered 2016/16109 Main, 2019/2079 Decision.
The defendant’s attorney has requested a correction of the decision.
It is mentioned that the right of legal pre-emption has two main purposes. The first is to prevent unwanted persons from entering between the shareholders; the other is to reduce the number of shareholders and to facilitate the elimination of shared ownership.
The right of legal pre-emption arises at the time of the establishment of the shared ownership relationship and continues to exist as long as the ownership relationship continues; in the event that one of the shareholders sells his/her share to a third party, the right of pre-emption becomes available.
Pursuant to Article 733 of the Turkish Civil Code, a new sales relationship arises between the owner of the right of pre-emption and the buyer upon the use of the right of pre-emption by filing a lawsuit within three months following the notification of the sale of the share to the owner of the right of pre-emption, and in any case within two years following the sale, and upon the receipt of this declaration by the addressee.
Article 2 of the Turkish Civil Code No. 4721 stipulates that everyone is obliged to comply with the rules of honesty when using their rights and fulfilling their obligations, and that the abuse of right will not be protected by the legal order as a sanction for non-compliance.
Although there is no regulation explicitly preventing the use of the legal pre-emption right in the event of a de facto division in an immovable subject to a shared ownership relationship, the 6th Civil Chamber of the Court of Cassation and our Chamber have found a consistent decision. Civil Chamber of the Court of Cassation and our Chamber; if the immovable property to which the share subject to the pre-emption case is related is divided by the shareholders among themselves privately and each shareholder uses a certain part, and one of them sells the place used by him and the share corresponding to this place to a third party, the plaintiff,
who did not claim a right to this place at the time of the seller, to use the right of pre-emption due to the sale made in the title deed, in accordance with the rule of good faith in Article 2 of the TMK numbered 4721. It is accepted that the claim of bad faith can be put forward at every stage of the case in accordance with the Unification of Case Law Decision dated 14.02.1951 and numbered 17/1, and even the court should be taken into consideration automatically.
As for the case in question; according to the official sales contract, the defendant purchased the shares in the immovables subject to the lawsuit on 24.11.2015 for a total of 9.240,00TL; according to the Gelendost Tax Office’s tax office receipt dated 25.11.2015, dated 25.11.2015, with an additional fee explanation for Afşar 2347, 7149 and 7150 parcels, amounting to 1.950,00TL, it was understood that the defendant completed the fee over the amount expressed as the real value. This correction was completed before 04.12.2015 when the pre-emption case was filed.
The defendant party corrected the error in the sales contract arising from the sales price by applying to the competent authority before the lawsuit was filed.
The issue here is whether the defendant party has the right and authorisation to have any error in the officially issued contract corrected before the lawsuit is filed, and if the correction is made, whether this correction will affect third parties outside the contract.
It is not correct to extend the interpretations and evaluations regarding the right of pre-emption, which is one of the limitations of the ownership of immovable property arising from the law, in favour of the owner of the right of pre-emption in a way to harm the essence of the right of ownership. For this reason, it is necessary to evaluate the current situation by giving equal value to the sales and correction transactions that took place before the lawsuit was filed, as a whole and by giving equal value to all of them.
The fact that the plaintiff, who made a request based on the sales contract subject to the pre-emption lawsuit and the information herein, did not accept the defendant’s transaction for the correction of an error in this contract before the lawsuit was filed is incompatible with the rule of honesty in Article 2 of Law No. 4721. While the lawsuit should be accepted over the sale price of 58.000,00TL, the acceptance of the lawsuit over 9.240,00TL is not in accordance with the law.
Since the request for correction of the decision of the defendant’s attorney is appropriate for the reason explained, the judgement should be reversed with the reason written.
CONCLUSION:
For the reasons explained above, it was unanimously decided on 07.09.2020 to REVOKE the decision of our Chamber dated 07.03.2019 and numbered 2016/16109 Main, 2019/2079 Decision, to REVERSE the judgement, to return the prepaid decision correction fee to the depositor.
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