The Negative Determination Case Filed In The General Court Has The Effect Of Preventing The Creditor From Obtaining Their Claim As Soon As Possible – It Cannot Be Considered A Suspensive Issue In Terms Of The Complaint
SUMMARY: A negative determination lawsuit filed in a general court on the same subject cannot be accepted as a suspensive issue in the complaint under consideration due to the specific structure of enforcement proceedings law and its nature of preventing the creditor from obtaining their claim as soon as possible.
(2004 S. K. m. 72, 135) (YHGK 23.05.2007 T. 2007/12-297 E.)
(2004 S. K. Art. 72, 135) (YHGK 23.05.2007 T. 2007/12-297 E. 2007/287 K.) (YHGK 17.04.2013 T.
2013/12-334 E. 2013/554 K.)
Case: Following the trial conducted due to the appeal filed through the legal process, the Istanbul 9th Enforcement Court
accepted the complaint and issued a decision dated 25.10.2010 and numbered 2010/1042 E., 2010/1493 K. Upon the request of the representative of the opposing party/auction purchaser M… A.Ş. and the opposing party/bid winner M… Inc.
(The Istanbul 6th Civil Commercial Court’s decision dated March 4, 2003, with case number 2002/109 and decision number 2003/215, declared K… Inc. bankrupt, In the auction conducted from the Istanbul Bankruptcy Office’s File No. 2003/4, the usufruct right in favor of the bankrupt company on the real property registered in the name of the Treasury under Parcel No. 20 was sold to M… Inc., and after the sale became final, an eviction order was issued to the complainant third party in accordance with Article 135 of the Enforcement and Bankruptcy Code.
Within the legal timeframe, the complainant filed a complaint against the eviction order in the enforcement court, and the court decided to accept the complaint.
Article 135/2 of the Enforcement and Bankruptcy Code contains the following provision:
According to this provision, if the immovable property auctioned to the buyer is occupied by a third party, the buyer may request the enforcement office to evict the third party from the immovable property.
The third party is obligated to prove that they are occupying the property based on a valid contract entered into prior to the attachment, as evidenced by an official document (Article 135, Paragraph 2!).
If the third party proves that they have a valid right to occupy the property based on an official document dated prior to the seizure, the enforcement court shall decide to revoke the eviction order.
If the third party proves that they are a tenant based on a lease agreement registered with the land registry prior to the attachment, the enforcement court shall decide to revoke the eviction order.
Similarly, if the third party proves that they are a tenant based on a lease agreement drawn up or certified by a notary prior to the attachment, the enforcement court shall decide to revoke the eviction order (Prof. Dr. B.
Kuru Enforcement and Bankruptcy Law, Handbook. November 2004 edition, p. 40), (H.G.K.’s decision dated May 23, 2007, case no. 2007/12-297, decision no. 2007/287).
In the present case, the bankruptcy of K… Inc. was decided on March 4, 2003. The contract and documents submitted by the complainant were found to be of a general nature and not of the nature specified in Article 135/2 of the Bankruptcy and Enforcement Code.
In this situation, since the complainant could not prove that they were entitled to occupy the property prior to the bankruptcy date by means of a lease agreement registered with the land registry prior to the bankruptcy date or an official document of the nature specified in Article 135/2 of the I.I.K. prior to the bankruptcy date, the court’s decision to dismiss the complaint
instead of accepting it is inappropriate…),
The case was overturned on these grounds and returned to the court, and after a new trial, the court upheld its previous decision.
After the H.G.K. reviewed the case and determined that the appeal against the decision to uphold the previous ruling was filed within the time limit, and after reviewing the documents in the file, the following decision was reached:
Decision: The request concerns the cancellation of the eviction order through the complaint procedure.
The court accepted the complaint and decided to cancel the eviction order.
Upon the appeals of the opposing party/bankrupt K… Inc. Bankruptcy Estate representative and the opposing party/auction purchaser M… Inc. representative, the Special Chamber overturned the decision based on the reasons stated in the heading section above.
The local court upheld the previous decision; the opposing party/bankrupt K… A.Ş. Bankruptcy Estate representative and the opposing party/auction purchaser M… A.Ş. representative appealed the decision.
During the hearing at the H.G.K., before proceeding to the merits of the case, it was argued that V. M., who had not been issued a proper eviction order, had no legal interest in appealing to the court of appeal.
, the majority accepted that V. M. had a legal interest in appealing the decision and decided to reject the preliminary issue, proceeding to examine the merits of the case
.
In examining the merits of the case;
The dispute brought before the H.G.K. through the appeal process; the complainant’s claim that the premises subject to the eviction order were occupied prior to the date of bankruptcy (04.03.2003) and is based on a formal document prepared in accordance with the provisions of Article 135/II of the 2004 Bankruptcy Law. At this point, it is beneficial to provide a brief explanation of the legal regulations pertaining to the matter:
The Enforcement and Bankruptcy Law No. 2004 (Article 135/II of the Enforcement and Bankruptcy Law, as amended by Article 17 of Law No. 3222 dated 06.06.1985
contains the following provision.
In the Government’s Explanatory Memorandum of Law No. 3222, which contains the amendment to the aforementioned article:
In order to prevent difficulties in delivering real estate sold through execution to the buyer and to prevent possible fraudulent agreements between the debtor and the occupant of the real estate, Article 135, paragraph 2 is amended and, in parallel with Articles 27 and 276, , the condition that the contract must be based on an officially prepared document in accordance with the proper procedure is introduced.
This indicates that the third party must prove their presence on the property based on a contract dated prior to the attachment through an officially recognized document.
The burden of proof lies with the third party. If the contract was registered with the land registry prior to the attachment or was drawn up or approved by a notary prior to the attachment, the eviction order must be revoked.
Under the aforementioned legal provision, reliance cannot be placed on an ordinary contract, nor can the court decide to revoke the eviction order based on such a document.
This is because an ordinary contract can always be drawn up (including retroactively).
This is why, as mentioned above, the legislator amended paragraph 2 (Article 135/II) of the aforementioned article to prevent potential bad-faith agreements.
On the other hand, since the decision of the enforcement court on this matter does not constitute a final judgment, a third party may file a declaratory action in the general court based on a contract dated prior to the attachment of the immovable property. This action is a negative declaratory action within the meaning of Article 72 of the Enforcement and Bankruptcy Code. The
filing of this action in the general court does not require the suspension of the complaint pending before the enforcement court. This is because the unique procedural structure of enforcement proceedings does not permit such suspension.
Indeed, the same principles were adopted in the decision of the Supreme Court of Appeals dated March 16, 2012, Case No. E:2012/12-34, K:159.
In the present case:
The complainant states in their petition that they are based on lease agreements meeting the legal requirements for the property, and claims that they have filed a negative determination lawsuit on the same matter at the Kemer Civil Court of First Instance, requesting that the pending complaint be treated as a suspensive issue.
The lease agreement dated September 3, 2009, which the complainant has submitted as evidence, is of a simple written nature. Since such documents can always be prepared retroactively, they cannot be accepted as documents of the type required by the Law.
However, during the discussion at the H.G.K., some members noted that although the lease agreement dated 03.09.2009 is of a simple written nature, the lease agreements dated
dated January 11, 2000, and June 12, 2003, which serve as the basis for this agreement and were submitted to the file, are notarized, they constitute an official document of the type required by the Law, and therefore the local court’s decision should be upheld. However, this opinion was not adopted by the majority.
Additionally, the phrase “…to be sold together with the lease notes…” in the real estate sale notice refers to the lease agreements registered in the land registry for the independent units located at plot 115, parcel 19, and the complainant cannot assert any rights based on this phrase.
On the other hand, as emphasized above, the negative determination lawsuit filed in the general court on the same subject cannot be accepted as a suspensive issue in the complaint under consideration due to the specific structure of enforcement proceedings and its nature of preventing the creditor from obtaining their claim as soon as possible.
Under these circumstances, while the local court should have complied with the Special Chamber’s reversal decision, which was also adopted by the H.G.K. and pointed to the same issues, the refusal to comply with the previous decision is contrary to procedure and law.
For this reason, the decision to refuse compliance should be reversed.
Conclusion: The appeals of the opposing party/bankrupt K… Inc. Bankruptcy Estate representative and the opposing party/bid winner M… Inc. representative are accepted, the decision to uphold the previous ruling is reversed based on the reasons stated above and in the Special Chamber’s reversal decision, in accordance with Article 429 of the 1086 Civil Procedure Code, as amended by Article 30 of Law No. 6217 and incorporated into the 6100 Civil Procedure Code, Upon request, the appeal deposit shall be refunded to the payer, in accordance with Article 366/III of the Enforcement and Bankruptcy Code No. 2004, as amended by Article 29 of Law No. 5311, and the right to appeal the decision shall remain open for 10 days from the date of notification of the decision, The decision was made by majority vote at the second hearing held on December 26, 2012.
DISSENTING OPINION:
The case concerns the request for the cancellation of the eviction order through the complaint procedure.
The decision issued by the local court to accept the case and cancel the eviction order was overturned by the High Special Chamber on appeal on the grounds that the document submitted by the complainant was of a common nature and did not constitute an official document as specified in Article 135/2 of the I.I.K.
The dispute centers on whether the complainant can prove that they used the independent section subject to the eviction order prior to the date of bankruptcy based on a contract documented by an official document as specified in Article 135/2 of the I.I.K.
Article 135/2 of the Enforcement and Bankruptcy Law No. 2004 In the explanatory memorandum to the amendment to Article 135/2 of the Enforcement and Bankruptcy Law, as amended by Article 17 of Law No. 3222, in order to prevent difficulties in the delivery of real estate sold through enforcement to the buyer and to prevent possible fraudulent agreements between the debtor and
those occupying the real estate.
In the reasoning of the Judicial Council Minutes, it is stated that “the real estate sold at auction is not based on a contract proven to have been made before the seizure with the debtor and those occupying it, and the occupants, whoever they may be, are forcibly removed and the real estate is delivered to the buyer.”
When both justifications related to the amendment of Article 135/2 of the I.I.K. are evaluated together, it is evident that the legislator aims to protect dispositions based on official documents prepared prior to bankruptcy (seizure)
and to prevent malicious agreements that are not based on official documents and can be prepared retroactively at any time.
In legal regulations and judicial practice, the transfer of ownership of immovable property and the validity of limited real rights (easements, usufruct, real estate sales contracts, long-term leases, etc.) are generally subject to registration in the land registry, annotation in the land registry, and a formal contract drawn up or approved by a notary. In Supreme Court decisions, the official documents referred to in Article 135/2 of the Turkish Code of Obligations are also accepted as documents registered in the land registry, annotated in the land registry, or drawn up or approved by a notary public.
The 12th Civil Chamber of the Supreme Court also based its reversal decision on general acceptance and practice, stating that the complainant (third party) is a tenant based on the condition that the tenant status is proven by a lease agreement registered with the land registry before the attachment or a lease agreement drawn up or certified by a notary public before the attachment, and states that the complaint should be dismissed on the grounds that the lease agreement relied upon by the complainant is of a simple nature and does not constitute a document of the type specified in Article 135/2 of the Turkish Code of Obligations.
In the present case, the complainant bases his request for the cancellation of the eviction order on notarized real estate usage right agreements and a 31-year lease agreement based on these agreements.
The property in question, parcel no. 20 of plot no. 155, is a plot of land owned by the Treasury, on which a 49-year easement right was established in favor of K… A.Ş. was established on the real estate in question, which is classified as land and belongs to the Treasury, starting from July 22, 1998, and recorded in the declarations section of the title deed. The company that holds the easement right has constructed 44 independent units on the real estate, and the apartment villa numbered 54 ce was leased to S… A.Ş. for a period of 39 years, and the lease agreement was approved by the Kadıköy 6th Notary Office on January 11, 2000, with serial number 00979;
The lessor, S… A.Ş., rented the apartment villa numbered 54 ce to I. L. and G. S. for a period of 37 years, and the lease agreement between the parties was approved by the Antalya 4th Notary Office on 12.06.2003 with file number 17707, and the transfer of the rights belonging to S… A.Ş. in the aforementioned agreement was recorded in the lease agreement of the Kadıköy 6th Notary Office on 11.01.2000
and serial number 00979, which states that the rights belonging to S… Inc. have been transferred; Lessor G. S. leased the right of use of the apartment villa numbered 54 ce (his own right and the inheritance right transferred due to his father’s death) for a period of 31 years on September 3, 2009, to V. M., and that Article 2 of the aforementioned lease agreement also states that the rights belonging to S… A.Ş. in the lease agreement dated January 11, 2000, and numbered 00979 by the 6th Notary Office of Kadıköy have been transferred, It is understood that the property usage rights of the four villas located on plot 20 of parcel 115, as specified in the annexed exchange agreement of the lease agreement dated January 11, 2000, with serial number 00979, issued by the 6th Notary Office of Kadıköy, were transferred by K… Inc. to S… Inc.
On March 4, 2003, the Istanbul 6th Civil Commercial Court ruled that K… Inc. was bankrupt.
The complainant-tenant submitted the contract as evidence for their claim, along with the contract approved by the Antalya 4th Notary Office on June 12, 2003, with serial number 17707, which was drawn up before the bankruptcy date (March 4, 2003) before the bankruptcy date (04.03.2003).
The complainant-third party acquired the property usage rights specified in the notarized lease agreements
It must be accepted that the complainant, as a third party, acquired the property usage rights specified in the notarized lease agreements through the agreement dated 03.09.2009, and that all rights of the parties in the notarized agreements have been transferred to the complainant due to contractual succession.
In this case, it is undisputed that the complainant used the independent unit numbered 54, which is the subject of the eviction order, based on a contract documented by an official document specified in Article 135/2 of the I.I.K. dated before the bankruptcy date (March 4, 2003).
Additionally, in the auction notice and terms and conditions for the sale of real estate and easement rights by public auction, dated 09.03.2009, and filed in the Istanbul Bankruptcy Directorate’s Case No. 2003/4, it is stated that the easement right of the parcel (established in favor of the bankrupt company for a 49-year term) and the easement right of the 44 units located in parcel 20
, and that nearly all of the 44 units located on parcel 20 have been leased by foreigners during the easement period and are actually being used with furniture, as determined by experts, and that the lease notes on them
shall be sold together. This record is valid until proven otherwise in accordance with Article 8 of the I.I.K., and since the record and its contents were not objected to by the auction purchaser company before and after the auction,
pursuant to Articles 124 and 125 of the I.I.K., the buyer who purchased the property at auction has acquired the property in the form specified in the tender specifications, as it was at the auction, and as it is.
For all the aforementioned reasons; since it has been proven that the complainant is occupying the independent unit numbered 54 in the real estate located at plot number 115, parcel number 20, which is the subject of the complaint, based on a contract documented by an official document prepared in accordance with the provisions of Article 135/2 of the Turkish Code of Obligations, K. No. 115, plot No. 20, is based on a contract documented by an official document prepared in accordance with the provisions of Article 135/2 of the Turkish Civil Code, I am of the opinion that the local court’s decision to accept the case, revoke the eviction order, and uphold the decision of the Special Chamber is in accordance with the law and procedure, and therefore, I do not concur with the majority opinion of the H.G.K. regarding the reversal of the decision to uphold the ruling.