Cancellation Of The Assignment Made Through Donation
What is a donation agreement?
This article will provide general information about the contract of donation. The definition of the contract of donation is made in the Turkish Code of Obligations dated 01.07.2012 and numbered 6098. Accordingly; Donation agreements are agreements in which the donor undertakes to make a gratuitous gain to the donor from his/her assets in order to have inter-life consequences.
However, the waiver of a right that has not yet been acquired or the refusal of inheritance is not considered as a donation. Pursuant to Article 285/3 of the TCO, the fulfillment of a moral duty is also not considered within the scope of donation.
Cancellation of the Assignment made through Donation
………………… JUDGE OF THE COURT OF FIRST INSTANCE
THE PLAINTIFF :
ATTORNEY :
DEFENDANT :
SUBJECT : It is a request for the cancellation of the assignment made by way of donation.
EXPLANATIONS
1-) Our client is currently … years old and has been on dialysis for about 15 years due to kidney failure. Our client, who needs constant care due to this illness, does not have any relatives to provide the necessary care for him.
2-) In order to meet this need for continuous care, our client donated the … m² immovable property, which was previously registered in his name in the title deed, … province, … district, … neighborhood/village, … plot, … island, … parcel, to the … Municipality of … (ANNEX-1) with the donation agreement dated …/ …/ … and numbered … by the … Notary Public on … date and … journal number. As clearly stated in the “Special Conditions” section of the donation agreement that we have submitted in the annex of our petition, our client, in return for his donation, will stay in the nursing home of the said municipality for 20 years and without any fee, and the continuous care service he needs will be provided to him by the nursing home authorities.
3-) Shortly after the signing of the aforementioned donation agreement, our client started to stay at the aforementioned municipality’s nursing home. However, after a while, the nursing home management, with the … Notary’s …/ …/ … dated …/ …/ … date and … journal numbered notice (Annex-2), notified our client that a fee must be paid in return for the service provided, therefore, the accumulated … TL fee must be deposited into the specified account within … days, otherwise, he will not be able to continue to stay at the nursing home.
4-) Upon this notice, which was notified to our client on …/ …/ … date, the verbal negotiations we have made so far with the nursing home management and the municipality regarding the issue have been fruitless. Although our client has fulfilled the performance undertaken in the donation agreement, the other party violates the maintenance obligation that it has undertaken in return for the donation transaction. For the reasons explained, it has become necessary to apply to your court for the annulment of the assignment made by our client through donation.
LEGAL GROUNDS : 6098 S. Code Articles 285, 288, 290, 291, 291, 292, 297, 616
LEGAL EVIDENCES :
1-) Land registry records,
2-)….. Donation agreement dated …/ …/ … and numbered … of the Notary Public,
3-) …/ …/ … dated …/ …/ … and dated … and dated … and dated … and numbered … by the …. Notary Public
CONCLUSION AND REQUEST
For the reasons explained above, I hereby request, by proxy, that the assignment transaction made by our client with the donation agreement dated …/ …/ … and numbered … by the … Notary Public dated …/ …/ … be canceled, and that the judicial expenses and attorney’s fee be decided to be charged to the other party. …/ …/ …
ANNEXES :
1-) Land registry,
2-… Notary Public’s donation agreement dated …/ …/ … and numbered …,
3-) …/ …/ … dated …/ …/ … and dated … and dated … and dated … and numbered … by … Notary Public
4-) One approved power of attorney sample
Counsel for the Plaintiff
…………………….
Decision of the 14th Civil Chamber of the Court of Cassation dated 09.01.2017:
The plaintiff claimed and sued that the immovable property subject to the lawsuit was donated to the defendant only to provide health center services, that these conditions were not fulfilled by the municipality, and that the municipality should have transferred the immovable property to the Red Crescent free of charge according to Article 3 of the contract, but the transfer was not realized, and that the deed registration was canceled and registered in the name of the plaintiff association.
The donor may file a lawsuit for the fulfillment of the obligation, as well as recourse from the donation in case of non-performance. The persons who may request the performance of the obligation are the donor, the heirs of the donor, the competent authority and the beneficiaries of the obligation.
This right of the donor is exclusively a personal right. In order for the competent authority to demand the performance of the obligation, the donor must be deceased and the obligation must have been imposed on the donor for the benefit of the public. Unless these two conditions are met, the competent authority has no right to demand the performance of the obligation.
The donor is alive at the date of the lawsuit. The donor does not have a claim for the revocation of the donation. In the case of a donation between survivors, the beneficiaries of the obligation may make such a request only if there is a condition for the benefit of the third party, that is, if the conditions of Article 129/2 of the Code of Civil Procedure are fulfilled, especially if there is clarity on this issue in the donation. In conclusion, it is correct for the court to dismiss the lawsuit since the donor was alive on the date of filing the lawsuit, no lawsuit for the revocation of the donation was filed by the donor, and the conditions under Article 129 of the Code of Civil Procedure were not met. (6)