Request For Removal Of Attachment
T.C. JUDICIARY
4th Civil Chamber
Basis: 2015/16555
Decision: 2016/8360
Decision Date: 27.06.2016
REQUEST FOR REMOVAL OF ATTACHMENT – ACQUISITION OF IMMOVABLE PROPERTY BEFORE REGISTRATION – THE REGISTRATION DECISION IS NOT A CONSTITUTIVE ACT BUT A DECLARATIVE ACT – INCONSISTENCY OF THE DECISION TO REJECT THE REQUEST – JUDGMENT REVERSED
SUMMARY: The lawsuit is related to the request for removal of the attachment. Since it is understood that the deed registration of the immovable property subject to the lawsuit in the name of the non-suit debtor … was canceled on the grounds that the sale transaction made in the deed cancellation and registration case was a collusive and malicious transaction and the registration decision was given in the name of the plaintiff …, the registration decision given is not a constitutive transaction in accordance with the legal regulations, but a declarative transaction and the deed registration in the name of the plaintiff did not go through the plaintiff, the immovable property subject to the lawsuit…. It should be decided to remove the attachments placed on the immovable property subject to the lawsuit in the follow-up files numbered 2011/5303 of the Execution Office and numbered 2010/28168 of the …Execution Office. It was not deemed correct for the court to decide to reject the request with grounds that are not appropriate, and therefore, the decision should be reversed.
(4721 S. K. art. 705)
Case: At the end of the trial held by the court upon the request of the plaintiff … and the other by the attorney …, the defendant … and the other against the defendant … and the other with the petition given on 28/12/2012; The Supreme Court of Appeals examination of the decision dated 23/12/2014, which was given on the rejection of the case, was requested by the attorney of the plaintiffs and the defendant … within the time period, and after the acceptance of the petition of appeal was decided, the report prepared by the examining judge and the papers in the file were examined and the necessity was discussed.
Decision: The lawsuit is related to the request for removal of the attachment. The court decided to reject the request; the judgment was appealed by the counsel for the plaintiffs and the counsel for …, one of the defendants.
The plaintiff stated that the attachments imposed on the immovable property numbered 3815 parcel in the enforcement proceedings initiated by the defendants were collusive, that the sale transaction regarding the immovable property subject to the lawsuit was canceled in the case file numbered 2010/23 main and 2011/524 decision of the … Civil Court of First Instance and that it was decided to annotate the immovable property as a family residence, and requested the removal of the attachments imposed by the defendants.
The defendants, on the other hand, stated that the allegations of collusion were not relevant and that the seizure was imposed due to the fact that the registration of the immovable subject to the lawsuit on the date of seizure was in the name of the non-suit debtor … and defended that the lawsuit should be dismissed.
The court decided to dismiss the claim on the grounds that the allegation of collusion was not proved, and that the seizures placed on the immovable were placed before the family residence annotation was placed on the immovable and while the immovable was registered in the name of the debtors.
In the examination of the case file; the plaintiff … sold the immovable subject to the lawsuit to Yonca Yılmaz on 06/09/2005 in accordance with the power of attorney given by the plaintiff … to her son-in-law, and on 04/06/2008, Yonca Yılmaz sold the immovable subject to the lawsuit to … Upon being informed of these sales by the wife of the plaintiff …, in the case file numbered 2010/23 of the … Civil Court of First Instance, due to the non-consensual transfer of the real estate subject to the lawsuit, which is the family residence …. It is understood that it was requested to cancel the title deed registration in the name of … and to put a family residence annotation, and as a result of the trial, the court, with the acceptance that the sale transaction was a collusive and malicious transaction contrary to the clear provision of the law and that the house subject to the lawsuit was a family residence; It is understood that it was decided to cancel the title deed registration of the immovable property subject to the lawsuit, parcel numbered 3815, in the name of … and to register and register the immovable property in the name of … and to put a family residence annotation on the title deed.
According to Article 705 of the Turkish Civil Code No. 4721, registration in the land registry is required for the acquisition of immovable property. Registration is a land registry process required for the transfer of immovable property. Except for legal exceptions, immovable property cannot be acquired unless it is registered. However, this rule is not an absolute rule, some of the exceptions to this rule are regulated in the Turkish Civil Code. In these exceptional cases listed in the law, immovable property is acquired before registration, but assignment cannot be made without registration. The important point in cases where immovable ownership is acquired before registration is that the registration in the land registry is not constitutive, but declarative. In declaratory registration, the right in rem has already been acquired; the duty of the registration is not to ensure the acquisition of the right in rem, but to inform the new owner of the right in rem. In the second paragraph of Article 705 of the TCC, it is stated which situations will enable the acquisition of immovable property before registration. Accordingly, in cases of inheritance, court decision, forceful execution, occupation, expropriation and other cases stipulated by law, ownership is acquired before registration. However, in these cases, the owner’s ability to perform disposition transactions depends on the registration of the ownership in the land registry.
In this case, since it is understood that the deed registration of the immovable property subject to the lawsuit in the name of the non-suit debtor … was canceled and registered in the name of the plaintiff … on the grounds that the sale transaction made in the deed cancellation and registration case was a collusive and malicious transaction, and that the registration decision given was a declarative transaction, not a constitutive transaction in accordance with the legal regulations mentioned above, and that the deed registration in the name of the plaintiff did not go through the plaintiff, it is understood that on the immovable property subject to the lawsuit…. The attachments placed on the immovable property subject to the lawsuit in the follow-up files numbered 2011/5303 of the Execution Office and numbered 2010/28168 of the …Execution Office should be decided to be removed. It was not deemed correct for the court to decide to reject the request on grounds that are not appropriate, and therefore, the decision should be reversed.
Conclusion It was decided with majority of votes on 27.06.2016 that the appealed decision should be reversed in favor of the plaintiffs for the reasons explained above, the defendant’s objections to the appeal should not be examined at this stage and the prepaid fees of the plaintiffs should be returned upon request.
DISSENTING OPINION
According to the writings in the file, the evidence on which the decision is based and the reasons that are in accordance with the law, especially the evaluation of the evidence, I disagree with the reversal decision of the majority, since I am of the opinion that the appellate objections, which are not in place, should be rejected and the judgment, which is in accordance with the procedure and the law, should be approved. 27/06/2016