Application To The Land Registry Office Is Not A Condition Of Litigation In Cases Under TMK 1027
General Assembly of Civil Chambers 2017/1224 E. , 2021/209 K.
“Case Law Text”
COURT :Magistrate Law Court
1. At the end of the trial held due to the lawsuit between the parties for “correction in the land registry”, the decision on the acceptance of the lawsuit rendered by the Akşehir Civil Court of Peace was reversed by the 1st Civil Chamber of the Court of Cassation upon the appeal of the defendant’s attorney, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the defendant’s attorney.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed:
I. JUDICIAL PROCESS
Plaintiff’s Claim
4. In the petition dated 08.04.2014, the plaintiff’s attorney claimed that his client’s heir “Hafız Mehmet Oruç” was a shareholder in the immovable property numbered 281, block 281, parcel 123 in Akşehir District, but his name was only written as “Mehmet” in the title deed record, and that it was not possible to correct the name in the title deed record administratively, and requested the correction of the owner’s name as “Hafız Mehmet” in accordance with the civil registration.
Defendant’s Reply:
5. The defendant’s attorney requested the court to make the necessary research and to dismiss the lawsuit if it is determined that the owner and the plaintiff’s muris are not the same person.
First Instance Court Decision:
6. The decision of the Akşehir Civil Court of Peace dated 17.06.2014, 2014/267 E., 2014/436 K. With the decision no; 123 parcel numbered immovable property in the title deed record, the name of the owner is written as “Mehmet Oruç, son of Kazım”, but the population directorate reported that there is no person with this name, only the name “Hafız Mehmet Oruç, son of Kazım”, according to the law enforcement investigation, it is the same person, When the underlying documents in the title deed were examined, it was decided to accept the case on the grounds that it was concluded that the person referred to as Kazım son Mehmet Oruç was Kazım son Hafız Mehmet Oruç, and that the application was first made to the land registry directorate for the correction of the record according to the relevant articles of the Land Registry Regulation, but the application was rejected.
Special Chamber Reversal Decision:
7. The defendant’s counsel appealed against the above-mentioned decision of the Court within the prescribed period.
8. With the decision of the 1st Civil Chamber of the Court of Cassation dated 31.03.2015 and numbered 2015/4042 E., 2015/4457 K;
“…The lawsuit is related to the request for correction of the identity information written incorrectly in the land registry and was filed on 08.04.2014, and the court decided on the merits.
The incomplete or erroneous recording of the identity information such as the name, surname, father’s name of the owner of the property right during the cadastral determination or registration of the immovables to the title deed constitutes the source of the record correction requests. In such requests, while correcting the identity information, the owner of the immovable property should not change, in other words, the transfer of ownership should not be caused.
If these requests are made to the court pursuant to Article 1027 of the Turkish Civil Code No. 4721 (TMK), they shall be heard in the court of peace according to the non-contentious judicial procedure pursuant to Article 382/(2)-ç)-1 of the CCP No. 6100, and since they are related to the immovable property, they shall be heard in the court where the immovable property is located pursuant to Article 12 of the same Law.
In addition, pursuant to the last paragraph of Article 702 of the TCC, which entered into force on 01.01.2002, since it is stipulated that each of the partners can ensure the protection of the rights of the community and all partners can benefit from this protection, in the case of joint ownership, any one of the partners may request correction regarding the identity information of the muris in the title deed alone.
However, Article 28 of the new Land Registry Regulation, which was adopted with the decision of the Council of Ministers dated 22.7.2013 and numbered 2013/5150 and entered into force upon its publication in the Official Gazette dated 17.8.2013 and numbered 28738. Article 28 of the new Land Registry Regulation, which was published in the Official Gazette dated 287.8.2013 and numbered 287, states that the name and surname, father’s name, reason for acquisition, date and journal number of the owner shall be written in the owner column of the registry page, the titles of legal entities shall be written in full, and the amount of share in shared ownership shall be shown fractionally in the section after the name, surname and father’s name of the shareholders.
In Article 72 of the same Regulation, it is stated that “Changes in the land registry may be made upon the request of the right owner or upon the decision of the competent authority or court” and in Article 74, it is stated that Article 74 states that “In the event that a simple clerical error contrary to the documents is detected in the registry, journal and auxiliary registers, the director shall make an ex officio correction by explaining the reason for the correction in the registry, the error or deficiency made in the request document shall be corrected and signed by the parties and the land registry officials by writing in an appropriate place of the document and the appropriate correction shall be made in the registry, and the errors or deficiencies made on the main or auxiliary registers shall be corrected accordingly,
In the event that it is caused by the documents submitted by the persons concerned or issued by other administrations, upon the applications of the persons concerned based on the documents proving the real situation, the request shall be recorded in the journal book and the necessary correction shall be made, in the registry, journal book and auxiliary registries, in order to correct the registration or fundamental clerical error contrary to the documents, the written consent of the persons concerned must be obtained, if there is no written consent of one of the persons concerned,
this situation shall be stated in the declarations column and the action shall be taken according to the provisions of the Decree Law dated 26. 9.2011 dated 26.9.2011 and numbered 659, if the corrections to be made affect the rights of the persons who have become right holders after the erroneous writing, the written consent of these right holders will also be sought, and the directorate is obliged to notify the transactions made without the knowledge of the persons concerned”.
Article 75 of the Land Registry Regulation states that ” (1) Spelling errors in the land registry regarding the name, surname and father’s name of the owner or right holder arising from cadastral works shall be corrected upon the application of the relevant person;
a) In determinations without a deed; population registration sample and a photo certificate to be taken from the municipality or mukhtar where the immovable is located,
b) In determinations based on records; if it is determined that the request comes from the real right owner by examining the records and documents on which it is based, and if necessary, by listening to witnesses and determination experts, if any, and by conducting an inspection on the ground, the request shall be corrected by recording it in the journal.
(2) The ground inspection shall be carried out together with the technical personnel of the cadastral directorate and a technical report shall be prepared as a result of the inspection; neighbouring parcel owners, mukhtar and other relevant persons shall be heard during the ground inspection; tax records and all other information and documents shall be used.
(3) The above paragraphs shall also be applied in updating the information in the land registry and eliminating the deficiencies.
(4) In accordance with the provisions of this article, it is obligatory to apply to the directorates for registration corrections”.
According to Article 26 of the same Regulation, the requests which are not in compliance with the provisions of the legislation and this Regulation and which cannot be subject to provisional registration annotation according to Article 1011 of the Law No. 4721 shall be rejected without delay, by stating the reason, place and period of objection, and the rejection decision shall be sent to the requestor by hand or by 11.2. 1959 dated 11.2.2.1959 and numbered 7201, and the rejection decision may be appealed to the regional directorate to which the directorate is affiliated within fifteen days from the date of notification, and the decision of the regional directorate may be appealed to the General Directorate within fifteen days from the date of notification.
Considering the above-mentioned provisions of the new Land Registry Regulation and especially its Article 75, it is seen that the Land Registry Directorates have been given very wide powers, allowing the errors in the land registry to be corrected administratively in a shorter period of time. Again, the last paragraph of this article states that “It is obligatory to apply to the directorates for record corrections in accordance with the provisions of this article”.
This provision does not restrict the freedom to seek rights, on the contrary, it gives the right seekers the opportunity to obtain their rights in a much shorter time, in an easy, cheap and simple way. As such, it is obligatory to first exhaust this opportunity and if no result is obtained in this way, the person concerned must apply to the court in accordance with Article 1027 of the Turkish Civil Code No. 4721.
Therefore, after 17.8.2013, when the new Land Registry Regulation was published in the Official Gazette and entered into force, the plaintiff must first apply to the relevant land registry directorate in accordance with the above-mentioned procedure without applying to the court, and if he cannot obtain the desired result in this request, then he must apply to the court.
As such, since the lawsuit was filed directly without following the legal procedure that obliges the applicant to first apply to the land registry directorate in accordance with the Land Registry Regulation, it is not correct to decide to accept the lawsuit as written, while it should be decided to dismiss the lawsuit procedurally…”.
Resistence Decision:
9. Akşehir Civil Court of Peace dated 09.10.2015 and numbered 2015/260 E., 2015/620 K. dated 09.10.2015 and numbered 2015/260 E., 2015/260 E., 2015/620 K.; when the decision of the Akşehir Land Registry Directorate dated 05.02.2014 regarding the rejection of the administrative application submitted by the plaintiff and the entire file scope are evaluated together, the previous decision was resisted on the grounds that the name of the owner of the record was mistakenly written incorrectly in the owner section of the immovable subject to the lawsuit, that no other person other than the owner of the record has any interest and interest in the immovable, and that the plaintiff applied to the land registry directorate before the lawsuit was filed, but the request for correction was rejected.
Appeal of the Resistence Decision:
10. The resisting decision was appealed by the defendant’s attorney within the time limit.
II. DISPUTE
11. The dispute before the General Assembly of Civil Chambers by way of resisting; in the case at hand, which was filed on 08.04.2014 with the request for correction of the owner identity information in the title deed record, whether an application was made to the land registry directorate in accordance with paragraph 4 of Article 75 of the Land Registry Regulation for the correction of the record before the lawsuit was filed, and whether it is necessary to decide to dismiss the lawsuit procedurally according to the result to be reached.
III. REASON
12. As it is known, the land registry is a registry kept under the responsibility of the State, according to the principles of registration and openness, to show the status of immovables and the rights thereon.
13. The new Land Registry Regulation No. 2013/5150 entered into force after being published in the Official Gazette dated 17.08.2013 and numbered 28738 in order to ensure that the land registry registries envisaged by the Turkish Civil Code No. 4721 (TCC) are kept in an orderly manner.
14. The Regulation sets forth the procedures and principles for the registration, amendment, cancellation and correction of property rights, limited rights in rem and personal rights related to immovables in the land registry and the archiving of registers and documents. Article 28 regulates how the right of ownership shall be registered in the land registry and it is stated that the name and surname, father’s name, reason for acquisition, date and journal number and titles of legal entities shall be written in full in the owner column of the registry page and the amount of share in shared ownership shall be shown fractionally in the section after the name, surname and father’s name of the shareholders.
15. Incomplete or erroneous recording of identity information such as the name, surname, father’s name, gender, date of birth, etc. of the owner of the right of ownership during the cadastral survey or registration of immovables to the title deed constitutes the source of the lawsuits for rectification of the registration. The purpose of these lawsuits filed for the correction or determination of the identity information in the land registry is to harmonise the identity information of the owner of the record in the land registry with the civil registration.
16. Pursuant to Article 1027 of the TMK, without the written consent of the persons concerned, the land registry officer may only correct an error in the land registry by a court decision, except for simple typographical errors (ordinary clerical errors) that may be corrected ex officio in accordance with the rules of the Land Registry Regulation.
In this context, Article 74 of the Regulation explains how the corrections on the main or auxiliary registers shall be made, and paragraph 1 of the Article stipulates that in the event that it is determined that a simple clerical error contrary to the documents has been made in the registry, journal and auxiliary registers, the simple clerical errors shall be corrected ex officio by the director by explaining the reason for the corrections in the registry. Accordingly, the director of the land registry may automatically correct simple clerical errors that do not affect the content of the right and that are contrary to the documents in the registry without the need for any action.
17. As for the corrections to be made upon the application of the relevant person, Article 75 of the Land Registry Regulation reads as follows: “(1) Spelling errors in the land registry regarding the name, surname and father’s name of the owner or right holder arising from the cadastral works shall be corrected upon the application of the relevant person;
a) In determinations without a deed; population registration sample and a photo certificate to be taken from the municipality or mukhtar where the immovable is located,
b) In determinations based on records; if it is determined that the request comes from the real right owner by examining the records and documents on which it is based, and if necessary, by listening to witnesses and experts, if any, and by making an inspection on the ground, the request is corrected by recording it in the journal.
(2) The ground inspection shall be carried out together with the technical personnel of the cadastral directorate and a technical report shall be prepared as a result of the inspection; neighbouring parcel owners, mukhtar and other relevant persons shall be heard during the ground inspection; tax records and all other information and documents shall be used.
(3) The above paragraphs shall also be applied in updating the information in the land registry and eliminating the deficiencies.
(4) It is obligatory to apply to the directorates for record corrections in accordance with the provisions of this article.” Accordingly, it is possible to correct the spelling errors regarding the name, surname and father’s name of the owner or right holder during the cadastral works by the land registry officer upon the application of the relevant person; provided that it is determined that the request comes from the real right holder as a result of the examination of the documents specified in the article and the necessary research.
18. Although this article contains a regulation similar to Article 87 of the abrogated Land Registry Regulation, paragraph 4 of Article 75 of the new Land Registry Regulation, the text of which is given above, introduces the obligation to apply to the land registry directorates for the record corrections to be made in accordance with the provisions of the article.
19. On the other hand, Article 26 of the Regulation stipulates that temporary registration annotations, which are not in compliance with the provisions of the legislation and the Regulation and which are not in accordance with Article 1011 of the Civil Code, shall be cancelled. Article 1011 of the TMK, the requests that do not comply with the provisions of the legislation and the Regulation and that do not allow for temporary registration annotation shall be rejected without delay, stating the reason, place and period of objection,
the rejection decision shall be indicated in the declarations column of the registry and the decision shall be notified to the requestor by hand or in accordance with the provisions of the Notification Law, and an objection may be filed against the rejection decision to the regional directorate to which the directorate is affiliated within fifteen days from the date of notification, and against the decision of the regional directorate to the General Directorate within fifteen days from the date of notification.
20. When it comes to the concrete case within the scope of all these explanations, the case at hand was filed on 08.04.2014 with the request for correction of the owner’s name in the title deed record, and the plaintiff’s application to the relevant title deed directorate in accordance with Article 75/4 of the Regulation before the lawsuit for the correction of the error in the record was rejected by the decision dated 05.02.2014 and this issue was written in the declarations column of the immovable property subject to the lawsuit. Although the administrative procedure to be followed by the claimant in case of a rejection decision is shown in Article 26 of the Regulation, the plaintiff has not exhausted the appeal procedures.
21. As such, it is necessary to discuss whether the obligation to apply to the land registry directorate and the completion of the procedure regarding the ways of objection regulated in the Land Registry Regulation is a condition of the lawsuit in terms of the lawsuits filed pursuant to Article 1027 of the TCC with the request for correction of clerical errors in the land registry.
22. The conditions of the case is an institution belonging to the civil procedural law and its purpose is to determine all the conditions necessary for the examination of the merits of a case and the procedure for their examination, thus helping the cases to be concluded more quickly, simply and economically.
23. These are the conditions whose presence or absence is absolutely necessary for the court to examine and decide on the merits of the case. The conditions whose existence is necessary for the court to examine the merits of the case are called affirmative conditions of action (such as jurisdiction, legal interest); the conditions whose absence is necessary are called negative conditions of action (such as final judgement).
24. The conditions of the lawsuit are the conditions that are necessary for the court to examine the merits of the case (to enter into the merits of the case), not for the lawsuit to be filed. These are also called the conditions for the case to be heard. A lawsuit filed without one of the conditions for filing a lawsuit is deemed to have been filed, i.e. it is pending. However, when the court determines that one of the conditions of the lawsuit is not present, it cannot examine the merits of the case; it is obliged to dismiss the case (procedurally) due to the absence of the conditions of the lawsuit. Because the judge examines the existence of the conditions of the lawsuit at every stage of the case. It is possible for the parties to assert the lack of the conditions of the lawsuit at any time.
However, it is not necessary for the parties to make a request in this regard, and the judge is not bound by the requests of the parties. In addition, in some cases, it may be possible to eliminate the lack of a condition of action. In such cases, the court is obliged to grant a definite period of time for the completion of the deficiency of the condition of action. If the deficiency of the condition of action is not remedied within this period, only then the court shall dismiss the case procedurally due to the lack of a condition of action.
25. Although the general conditions of action are stipulated in Article 114 of the Code of Civil Procedure No. 6100, the conditions of action are not limited to those listed in the said article, and may also be the conditions of action stipulated in other laws. As a matter of fact, in paragraph 2 of Article 114, it is stated that the provisions regarding the conditions of action in other laws are reserved.
26. On the other hand, in the legal order, which is a hierarchical system of norms, it is undoubted that the norms at the lower level take effect from the norms at the higher level. At the top of the hierarchy of norms are the universal principles of law and the Constitution, followed by laws, which derive their enforcement from the Constitution, by-laws, which derive their enforcement from the law, and regulations, which derive their enforcement from the law and by-laws.
It is not possible for a norm to introduce a provision that contradicts or modifies a norm that is in a higher position than itself and on which it is based (Kuluçlu, E.: Hierarchy of Norms in the Turkish Legal System and its Effects on the Audit of the Court of Accounts, Journal of the Court of Accounts, no. 71, p. 21; HGK dated 23.01.2020 and 2017/4-1323 E., 2020/59 K.).
27. In the hierarchy of norms, a subordinate norm should not contradict the superior norm, and should not go beyond the legal limits given to it by the superior norm. Ensuring the hierarchy of legal norms within constitutional limits is also important for the rule of law. This is because, if a matter that is not prohibited by a higher norm is prohibited by a lower norm, the principle of the rule of law is damaged.
28. Although the provision in Article 115 of the Constitution stating that “The Council of Ministers may enact by-laws to show the application of the law or to specify the works ordered by it” has been repealed, the by-laws enacted before the Constitutional amendment continue their legal existence. It is also clear that the by-laws, which come after the laws in the hierarchy of norms, should not contain regulations contrary to the laws.
29. In this context, if the relevant articles of the Land Registry Regulation are to be evaluated, considering that simple identity information such as name, surname, father’s name, gender and similar ordinary spelling errors that can be corrected by the administration in the land registry records are subject to many lawsuits within the framework of Article 1027 of the TMK, Article 75 of the Regulation provides the opportunity to correct such requests more easily and quickly administratively without going to court.
However, in practice, these correction methods are not sufficiently operated by the land registry offices, and the applicants are often directed to file a lawsuit, causing unnecessary waste of time, and it is not possible to say that the obligation to apply to the land registry office regulated in paragraph 4 of Article 75 of the Regulation is a condition of litigation for the lawsuits to be filed according to Article 1027 of the TMK. This is because this issue is related to the right of access to the court and what is essential is that the right of access to the court does not remain in theory and that individuals can effectively exercise this right.
30. The freedom to seek justice, which is guaranteed under Article 36 of the Constitution, is not only a fundamental right but also one of the most effective guarantees that ensure the proper enjoyment and protection of other fundamental rights and freedoms. According to the aforementioned Article, everyone has the right to claim and defend himself as a plaintiff or defendant before the judicial authorities and to a fair trial by making use of legitimate means and procedures. The right of access to a court is the right that enables individuals to assert their claims and defences before a judicial authority. Therefore, the right of access to a court is an element of the freedom to seek justice guaranteed under Article 36 of the Constitution.
31. The right of access to a court, which is one of the most fundamental elements of the right to a fair trial, means being able to bring a dispute before a court and to request an effective resolution of the dispute (Özkan Şen, B. No: 2012/791, 7/11/2013, § 52). The European Court of Human Rights (ECtHR) recognises the right of effective access to a court as one of the fundamental elements of the principle of “the rule of law” and states that the right of effective access to a court requires the existence of a coherent system of recourse to the court and clear, practical and effective opportunities for those who wish to bring a case to have access to the court.
For this reason, it is held that this right is violated in cases where legal uncertainties or uncertainties in practice harm the parties’ access to the court (Geffre v. France, B. No: 51307/99, 23/1/2003, § 34).
32. According to Article 13 of the Constitution entitled “Restriction of fundamental rights and freedoms”, fundamental rights and freedoms may be restricted without prejudice to their essence only for the reasons set out in the relevant articles of the Constitution and only by law. Therefore, limitations preventing the person from applying to the court can only be regulated by law.
In the hierarchy of norms, a regulation restricting the right of access to the court cannot be made by statute, which comes after the laws, and in paragraph 2 of Article 114 of the CCP, it is clearly stated that the provisions regarding the conditions of litigation in other laws are reserved. For this reason, it is not possible to decide to dismiss the case procedurally on the grounds that the obligation to apply to the land registry directorate in Article 75/4 of the Land Registry Regulation and the related administrative objection process has not been completed.
33. On the other hand, although the date of the lawsuit, which was 08.04.2014, is written as 24.04.2015 in the title of the reasoned decision regarding the resistance, this issue is a material error that can always be corrected by the court.
34. Hence, for the different justifications and reasons written above, the decision of the local court to resist is in accordance with the procedure and the law and is appropriate.
35. However, since the other appellate objections have not been examined by the Special Chamber, the file should be sent to the Special Chamber for further examination.
IV. CONCLUSION:
For the different justifications and reasons explained;
The resistance is appropriate and the file should be sent to the 1st LAW CHAPTER for the examination of the other appellate objections of the defendant’s attorney,
Pursuant to Article 440/III-2 of the Code of Civil Procedure No. 1086, which is being applied by reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100 with Article 30 of the Law No. 6217, it was unanimously decided on 04.03.2021, with the way of decision correction closed.
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