Decision Regarding The Inappropriateness Of Not Discussing And Justifying Whether The Plaintiff, Who Did Not Object To The Appraisal Report, Can Claim This Price In This Case
T.C. JUDICIARY
3rd Civil Chamber
Main: 2016/8735
Decision: 2016/10148
Decision Date: 27.06.2016
LAWSUIT FOR RECEIVABLES – INAPPROPRIATENESS OF NOT DISCUSSING AND JUSTIFYING WHETHER THE PLAINTIFF, WHO DID NOT OBJECT TO THE VALUATION REPORT, CAN CLAIM THIS PRICE IN THIS LAWSUIT – JUDGMENT REVERSED
SUMMARY: The court did not discuss and justify whether the irrigation well costs, which were not taken into consideration during the appraisal made in the sale file, increased the value of the immovable property, and whether the plaintiff, who did not object to the appraisal report determined in this way, could claim this price in this case.
(4721 S. Code Art. 684)
Case and Decision: As a result of the trial of the debt case between the parties, the judgment for partial acceptance of the case was appealed by the defendant’s attorney and the defendant within the time limit; after the decision to accept the appeal petition, the papers in the file were read and considered accordingly:
The plaintiff’s attorney, with the petition of lawsuit, stated that the immovable property, in which the parties were 1/3 shareholders, was sold as a result of the dissolution of partnership lawsuit, the plaintiff planted and cultivated walnut, pear, tangerine, plum, fig, quince, pomegranate, apricot, olive, vine, mulberry, poplar trees on the immovable property, drilled a water well, laid a pipe, installed a submersible pump and motor, built a house, animal roof, outbuildings; the useful compulsory expenses are worth 60. 000.00 TL; claiming that the price of the immovable sold as a result of the dissolution of the partnership case was paid equally, and that the defendants were unjustly enriched; reserving their rights regarding the surplus, he demanded and sued for the collection of the receivable of 20.000.00 TL each from the defendants with legal interest.
Defendant …’s attorney, with his reply petition; requested the dismissal of the lawsuit.
The defendant … stated in his statement taken during the discovery that the plaintiff planted and cultivated the fruit trees, had the animal roof built, had a borehole drilled, and that the house was built by his uncle.
The court decided to partially accept the lawsuit, to take 9.163,36 TL from the defendant … and give it to the plaintiff together with the legal interest to be accrued as of 27/09/2011, the date of the lawsuit, to reject the claim for the excess, to take 9.163,36 TL from the defendant … and give it to the plaintiff together with the legal interest to be accrued as of 27/09/2011, the date of the lawsuit, and to reject the claim for the excess; the judgment was appealed by the defendant’s attorney and the defendant in due time.
The lawsuit is related to the claim for the collection of the useful and compulsory expenses allegedly incurred by the plaintiff on the immovable subject to the lawsuit from the other shareholders according to the unjust enrichment rule. The dispute subject to appeal centers on whether the defendants were unjustly enriched against the plaintiff.
From the information and documents in the file; regarding the immovable subject to the lawsuit, … filed a lawsuit for the elimination of the partnership with … and …, the court decided to eliminate the partnership on the immovable through sale, in the appraisal report in the sales file of the immovable, it was determined that the total value of the land, trees, dwelling and roof was 77. 125.00 TL, this figure was written in the auction announcement as the estimated price, the immovable was sold to the non-suit … on 30/05/2011 with a price of 116.500.00 TL through auction, and it was understood that the plaintiff filed the present unjust enrichment lawsuit on 27/09/2011.
The court made a discovery, and in the additional report prepared by the agricultural engineer expert who participated in the discovery; the value of the trees is 7.050.00.-TL, the costs incurred for the irrigation well is 15.000.00.-TL, the costs incurred for the trees is 1.190.10. -TL, the defendant’s attorney objected to the additional report, and the court stated in the justification of the decision that the value of the animal roof was determined as 4.250,00 TL in the sales file, this value was taken as basis, and that the plaintiff contributed a total of 27.490,10 TL to the immovable in question (the sum of the value stated in the additional report and the value of the animal roof). This figure was divided into three and one third was left on the plaintiff and the remaining amount was decided to be paid by the defendants.
According to the unjust enrichment rules, the moment of impoverishment and enrichment must occur in order to make a claim. Unjust enrichment occurs on the date of the sale by way of dissolution of the partnership and the payment of the sale price. As a rule, if there has been an increase in the sale price of the immovable property due to the works and useful expenses made by the defendants on the immovable property, the plaintiff may claim the amount of this increased value corresponding to the shares of the defendants in accordance with the unjust enrichment rules.
In the concrete case, the immovable property subject to the lawsuit was sold to the non-suee together with the contents on it, and the sale money was distributed equally to the plaintiff and the defendants (35.853.01 TL each). Now, the plaintiff can claim the expenses incurred on the immovable property from the defendants, who are the other shareholders, in accordance with the provisions of unjust enrichment.
Since the plaintiff seeks the collection of the unjust gains of the defendants due to the useful expenses he has incurred on the immovable property; the way to be followed by the court in the calculation of unjust enrichment is as follows: The actual release value to be obtained from the sale of the immovable property on the day of the tender and under the same conditions should be determined separately for the cases where the useful expenses made by the plaintiff have been made and not made by the plaintiff through an expert in the field, when there is a difference between the values to be obtained in this way, they should be proportioned to each other, this ratio should be applied to the sale price made by tender, the amount of the reflection of the expenses made by the plaintiff on the tender price should be determined, and the amount corresponding to the share of the defendants should be ruled from this amount to be found. If it is understood that there is no difference between the values determined in case the expenses are incurred and the values determined in case they are not incurred, the lawsuit should be dismissed on the grounds that the expenses have no effect on the sale price, therefore the defendants are not unjustly enriched due to the incurring of these expenses.
In addition, it is understood that in the appraisal report included in the sale file of the immovable subject to the lawsuit, the value of the land, trees, house and roof was calculated, the total value found was written as the estimated price in the auction announcement, and the irrigation well expenses were not mentioned in this report. The court did not discuss and justify whether the irrigation well costs, which were not taken into consideration during the appraisal made in the sale file, increased the value of the immovable, and whether the plaintiff, who did not object to the appraisal report determined in this way, could claim this price in this case.
Conclusion Since the appellate objections are appropriate for these reasons, it was decided unanimously on 27.06.2016 that the judgment shall be DISMISSED in accordance with Article 428 of the Code of Civil Procedure and the prepaid appeal fee shall be refunded to the appellant upon request.
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