The Fact That The Cancellation And Registration Of The Title Deed Does Not Mean That The Cancellation Of The Price Of The Immovable Property Is Also Cancelled
1st Civil Chamber 2019/4293 E. , 2021/3301 K.
“Case Law Text”
COURT : ISTANBUL REGIONAL COURT OF JUSTICE 1ST CIVIL CHAMBER
CASE TYPE : CANCELLATION AND REGISTRATION OF TITLE DEED – RECEIVABLE
At the end of the land deed cancellation and registration, receivable lawsuit between the parties, the local court decided to dismiss the lawsuit, and upon the appeal of the plaintiff’s attorney against the decision, the regional court of justice accepted the plaintiff’s appeal application in accordance with Article 353/1-b-2 of the CCP on the grounds that the claim of faith transaction between the parties was proved by bank receipts and the partial admission of the defendant, but the plaintiff fulfilled his obligation arising from the faith contract incompletely, and the decision given by the local court regarding the abolition of the decision and the dismissal of the compensation request was appealed by the plaintiff’s attorney in due time.
In accordance with Article 353/1-b-2 of the Code of Civil Procedure, the decision regarding the acceptance of the plaintiff’s appeal, the abolition of the local court decision, and the rejection of the compensation request was appealed by the plaintiff’s attorney within the legal period, and the defendant’s attorney appealed with a request for hearing within the legal period, and the notification for Tuesday, 15.06. 2021 Tuesday, the appellant defendant … and his attorney, Attorney … came, despite the invitation notification, the other appellant plaintiff … and his attorney,
Attorney v.d. did not come, the hearing started in their absence, after it was decided to accept the petition of appeal, which was understood to have been given and registered in due time, the verbal explanations of the attorney who came were listened to, the hearing was declared to be over, and the work was left to the decision. Subsequently, the report prepared by the Examining Judge … was read and his opinion was taken. The file was examined and the necessity was discussed and considered:
-DECISION-
While the lawsuit was related to the request for cancellation and registration of the title deed based on the legal reason of faithful transaction, and if not possible, the request for receivables, it was transformed into the request for the collection of the immovable property price and receivables by amendment.
The plaintiff, in the immovable property numbered 712 block 2 parcel, block B, flat numbered 15, for the purpose of obtaining a housing loan, on the condition that it will be returned later, the defendant with high creditworthiness before the banks … ‘s assignment to the defendant by sale, claiming that the defendant refrained from returning the immovable property despite paying all instalments of the housing loan provided by the defendant in accordance with the verbal agreement between them and closing the loan debt, and requested a decision for cancellation and
registration of the title deed, and if not possible, to determine the payments made by the defendant as a deduction for the housing loan and to collect them from the defendant together with the interest to be accrued from the date of payment to the date of collection, and 28. With the amendment petition dated 28.09.2016, he requested the collection of 260.000,00 TL immovable property price from the date of transfer and the 93.518,00 TL loan price, which he claimed to have paid, together with the legal interest to be accrued from the date of payment.
The defendant defended the dismissal of the lawsuit by stating that he purchased the immovable property from the plaintiff by paying 160.000,00 TL by hand, that he obtained a 75.000,00 TL housing loan from the bank with the request of his non-suit partner friends and gave it to the plaintiff, that the plaintiff should make the loan payments according to the verbal agreement between them, but that the plaintiff started not to make payments later, that he had to pay the remaining debt himself, that the claim for the receivable was time-barred.
The court decided to dismiss the lawsuit on the grounds that the allegations could not be proved, and upon the appeal of the plaintiff’s attorney against the decision, the district court of appeal decided to accept the plaintiff’s appeal in accordance with Article 353/1-b-2 of the CCP on the grounds that the claim of faith transaction between the parties was proved by the bank receipts and the partial admission of the defendant, but the plaintiff fulfilled his obligation arising from the faith contract incompletely.
It was decided to accept the plaintiff’s appeal application in accordance with Article 353/1-b-2 of the CCP, to annul the decision of the local court, to reject the compensation request, and to take 93.518,00 TL, which is fixed to be paid by the plaintiff for the loan debt, from the defendant with the legal interest to be processed from the date of the lawsuit and to give it to the plaintiff.
From the file content and the collected evidence; it was discovered that the plaintiff assigned the independent section numbered B block 15 (duplex residence with roof penthouse) in 712 block 2 parcel B block 15 to the defendant on 03.11.2008 through his proxy Erol Uslu for 12.000,00 TL, and the value of the immovable was 179.000,00 TL on the date of sale and 260.000,00 TL on the date of the lawsuit. 000,00 TL at the date of sale and 260.000,00 TL at the date of the lawsuit, the defendant obtained a loan of 75.000,00 TL from Garanti Bank, which is not the defendant of the housing finance agreement dated 31.10.2008, and a mortgage annotation was established on the immovable subject to the dispute on 04.11.2008 in favour of the bank, and the annotation was cancelled on 29.12.2011.
As it is known, a belief contract is an obligatory transaction between the believer and the believer, which determines their rights and obligations, includes the reasons for the termination of the belief transaction and the conditions for the return (return) of the transferred right by the believer to the believer.
This contract is an independent contract covering the rights and obligations of the parties and constitutes the legal basis for the transfer of claims and property.
The parties usually apply for such a contract and the related transaction in order to create a stronger legal position than ordinary legal transactions for the same purpose, in order to give something or a right included in the assets to the creditor in faith, in order to constitute security and to be returned. In other words, with this transaction, the debtor, instead of pledging his property to his creditor, i.e. granting only a limited real right, transfers the ownership of his property and grants a stronger and more advanced right than the pledge right.
Due to the aforementioned characteristics of the contract and the related assignment, the person who sells the immovable property under a contract of faith has only a right to claim the immovable property by returning the borrowed money, and the person who buys the immovable property under a contract of faith has only an obligation not to sell the immovable property to another person until the debt is paid, and to return it when the debt is paid.
In practice, the issue is associated with the Unification of Jurisprudence decision dated 05.02.1947 and numbered 20/6, and the solution is made by taking this decision as a basis. In the aforementioned decision, it is discussed whether the allegations of collusion and allegations of alias al- müstear, which were possible and valid according to the former law, can be heard about immovable properties after the enforcement of the Civil Code.
İn the aforementioned decision; it is possible to show another name instead of the real owner in an immovable property record for various reasons and purposes, and a third party instead of one of the contractors in a contract, in such cases, as in the dispositions made by the attorney on his own behalf and on behalf of his client, it may be aimed to conceal the truth from third parties for a legal situation or for any purpose, except for “malicious and unjust concealments”, a lawsuit to be filed according to the possibilities mentioned will indeed have the nature of either a change of possession based on an existing right or the protection of a right;
This situation is a matter that has been accepted as the principle of succession in ownership in the representation and proxy relationship, and even if the ownership of the property is considered to belong to the proxy for the purpose of correcting the succession, this cannot be preserved and continued since it is contrary to the provisions of representation, because Article 509 of the TCO stipulates that Article 509 of the TCO states that “The receivables of the agent from third parties arising from the works performed by the agent on his own behalf and on behalf of the principal shall automatically pass to the principal as soon as the principal fulfils all his obligations towards the agent. ”
confirms this idea, on the other hand, it is stated that neither the official deed nor the issue of form can be the subject of the matter, since the matter cannot be considered as a claim of appropriation and ownership in the case of nam al- müstear, whether it is related to movable or immovable property, and that it would be in accordance with the purpose of the law to consider the matter within the scope of Article 19 of the TCO, which covers collusion in the contract and name, and in conclusion, it was ruled that nam al- müstear cases can be heard and proved by written evidence.
It is indisputable that the decisions of the Consolidation of Jurisprudence are limited to their subjects and binding with their results. It is also undoubted that the decision dated 1947, which introduced a regulation for pseudonymity, covers the contracts of faith for assignment for security purposes. In practice, the aforementioned contracts have been characterised under the headings of collusion in general and fictitious name in particular, both in terms of their essence and functioning. As mentioned in the Unification Decision, belief contracts are binding on the parties in terms of creating an obligation to transfer ownership on the one hand, and on the other hand, they are contracts that contain disposition transactions in terms of constituting the reason for the transfer of ownership.
In this case, if the conditions are met, it should be accepted that they have the characteristic of transferring immovable property. As stated in the conclusion section of the Unification of Jurisprudence Decision, the proof of the claims based on the faith transaction, which are accepted to be heard, is written evidence that does not depend on the form. This document, which is called a belief contract, must contain the signatures of the parties to the contract. An acceptance other than this cannot be reconciled with these unique contracts, as it would mean both expanding the scope of the Unification of Jurisprudence decision and enabling the sale of immovables outside the title deed.
Pursuant to the Unification of Beliefs decision dated 05.02.1947 and numbered 20/6, it is undoubted that the claim based on the faithful transaction must be proved by written evidence, which is not bound by the form. If the party who has the burden of proof does not have a written document, but there are some documents such as letters, bank receipts, correspondence between the parties, these will be considered as the beginning of written evidence and it will be possible to prove the claim with all kinds of evidence. If there is no such fact to be considered as the beginning of written evidence, it is undoubted that the last evidence to be applied by the claimant is the right to offer an oath to the other party.
As for the concrete case, it is also accepted by the court that the plaintiff has paid some loan amounts.
As such, it is concluded that these payments are the beginning of evidence, and it is not correct to make a decision as written with an incorrect evaluation and incomplete investigation, while it is necessary to collect other evidence shown by the parties in terms of proving the claim of faithful transaction, and to conduct an examination and research in line with the above principles, considering that the fact that the plaintiff has given up the request for cancellation and registration of the title deed does not mean that he has given up the price of the immovable.
With the acceptance of the appeal objections of the parties, which are deemed appropriate in terms of the aforementioned aspect, in accordance with Article 371/1-a of the CCP No. 6100, the decision of the 1st Civil Chamber of the Istanbul Regional Court of Appeals is REVERSED, and the file is sent to the 1st Civil Chamber of the Istanbul Regional Court of Appeals, which made the decision in accordance with Article 373/2 of the CCP, 24. 3.050.00.-TL for the defendant’s attorney from the appellants who came in accordance with the Attorney Minimum Fee Tariff that entered into force on 11.11.2020. It was unanimously decided on 15/06/2021 to collect the trial attorney fee from the counter-appellant who did not attend the hearing, and to return the received advance fee to the appellant.
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