If The Promise Is Given To The Promise Creditor In The Immovable Property Contract, It Is Contrary To The Rule Of Honesty To Raise A Defence
14th Civil Chamber 2021/271 E. , 2021/2550 K.
“Case Law Text”
COURT :Civil Court of First Instance
By the plaintiff’s attorney, with the petitions filed against the defendants on 19.08.2014 in the original case and 08.08.2014 in the consolidated case. 2017, and the request for cancellation and registration of title deed due to pre-emption in the main case and cancellation and registration of title deed based on the sales promise agreement in the consolidated case; at the end of the hearing held by complying with the reversal order; the dismissal of the main case due to the lack of active hostility, the dismissal of the consolidated case by the defendant … The Court of Cassation of the judgement dated 30/11/2020, which was dismissed due to statute of limitations in respect of the other defendants and dismissed on the merits in respect of the other defendants, was requested by the plaintiff’s attorney, and after it was decided to accept the petition of appeal, which was understood to be in due time, the file and all the documents contained therein were examined and considered accordingly:
DECISION
The main lawsuit is related to the request for cancellation and registration of title deed arising from the right of pre-emption, and the case consolidated after the reversal is related to the request for cancellation and registration of title deed arising from the sales promise agreement.
In the main case, the plaintiff’s attorney stated that the plaintiff was a shareholder in block 349, parcel 3, and that the 1/3 share belonging to the defendant … was sold to the defendant … on 28.10.2013 and requested the cancellation and registration of the title deed arising from the right of pre-emption.
In the consolidated case, the attorneys of the defendants objected to the statute of limitations and defended the dismissal of the case separately.
The first decision of the court to deem the lawsuit as not filed was reversed upon the appeal of the plaintiff’s attorney with the decision of our Chamber dated 16.01.2017 and numbered 2015/7295 main and 2015/277 decision; “…since it is understood that the deficiencies in Article 119/b of the CCP have been fulfilled by the plaintiff, it has not been deemed correct for the court to make a decision by entering the merits of the case after the party formation is completed by eliminating the other deficiencies regarding the party formation, but it was not deemed correct to make a decision in writing, …”.
In the case consolidated after the reversal, the plaintiff’s attorney stated that the plaintiff … purchased the … share in the immovable property numbered 349 block 2 parcel with the sales promise agreement dated 04/05/2006 and the … share with the sales promise agreement dated 28/12/2006, and that the defendant …, despite knowing this situation, fraudulently transferred the shares to … and then ensured the registration in his name, and requested the cancellation and registration of the title deed based on the sales promise agreements.
The court, at the end of the trial conducted by complying with the reversal order, decided to dismiss the case in the second judgement, and upon the appeal of the judgement by the plaintiff’s attorney, with the decision of our Chamber; “As for the concrete case; the court decided that the plaintiff’s deeds dated 04.05.2006 with journal number 04825 and dated 28.12. 2006 dated 04.05.2006 and 28.12.2006 dated 17171 journal numbered sales promise agreements against the defendants …, …, …, …, it was not deemed correct not to make a decision on the combined file regarding the cancellation of the title deed of the immovable property numbered 349 block 2 parcel and its registration on behalf of …”.
The court, by complying with the reversal order, decided to dismiss the main lawsuit due to lack of active hostility, and to dismiss the consolidated lawsuit due to statute of limitations in respect of the defendant … and on the merits in respect of the other defendants.
The judgement was appealed by the plaintiff’s attorney.
1)According to the judgement, the collected evidence and the entire file content, all appellate objections of the plaintiff’s attorney regarding the case in the main file and other appellate objections other than the scope of the following sub-paragraph in the case in the combined file were not deemed appropriate and should be rejected.
2)Immovable sale promise agreements, which have their source from Article 29 of the Turkish Code of Obligations, are a type of contract that must be issued ex officio before a notary public in accordance with the provisions of Article 237 of the Turkish Code of Obligations and Article 706 of the Turkish Civil Code and Article 89 of the Notary Public Law, in other words, its validity is subject to the official form requirement, imposes obligations on both parties and provides personal rights. The promissory creditor may request the fulfilment of the obligation from the seller, who is obliged to transfer the ownership with the immovable property sales promise agreement, in the cancellation and registration of the title deed lawsuit to be filed pursuant to Article 716 of the Turkish Civil Code, when the performance is not fulfilled.
Since no special limitation period is foreseen for the lawsuits arising from the immovable property sale promise contract, the ten-year limitation period is applied in accordance with Article 146 of the Code of Obligations and this period starts to run with the possibility of performance of the contract. However, if the immovable property promised for sale has been delivered to the person who has accepted the promise of sale, i.e. the promise creditor, the defence of statute of limitations shall not be heard in the lawsuits filed after the ten-year statute of limitations has expired, as it is incompatible with the “rule of honest behaviour” in Article 2 of the Turkish Civil Code.
As for the concrete case; the parties to the contract dated 04.05.2006 are the plaintiff and the defendant … and the contract was duly drawn up. The plaintiff filed a claim for cancellation and registration of title deed based on the sales promise agreement, the defendant … asserted the statute of limitations defence, and the court dismissed the lawsuit on the grounds that the lawsuit was time-barred.
In the solution of the dispute, the starting date of the statute of limitations constitutes an important problem. It is accepted by the court that the possession of the immovable property subject to the lawsuit was transferred to the plaintiff pursuant to the real estate sales promise agreement dated 04.05.2006, and that the plaintiff continued its possession without any dispute until the date of the lawsuit. As long as the possession continues, the statute of limitations does not run. As such, it is not correct to dismiss the lawsuit on the grounds that the statute of limitations has expired.
In that case, while the court should make a decision by examining the merits of the case, it was not deemed correct to make a decision in writing with an erroneous evaluation, and the judgement should be reversed for these reasons.
CONCLUSION:
For the reasons explained in subparagraph 1) above, all appellate objections of the plaintiff’s attorney regarding the case in the main case and other appellate objections in the consolidated case are rejected, for the reasons explained in subparagraph 2) above, the judgement is reversed by accepting the appellate objections, the prepaid fee is returned to the depositor, the way of correction of the decision is open within 15 days from the notification of the decision, it was unanimously decided on 07.04.2021.
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