Cancellation And Registration Of Title Deed, Contractor In Third-Party Position Unaware Of Real Estate Price
T.C.
COURT OF CASSATION
1st CIVIL CHAMBER
CASE NO: 2015/9380
DECISION NO: 2018/8897
DATE OF DECISION: 09.04.2018
COURT: CIVIL COURT OF FIRST INSTANCE
CASE TYPE: CANCELLATION AND REGISTRATION OF TITLE DEED
>>CANCELLATION AND REGISTRATION OF TITLE BASED ON LEGAL GROUNDS OF FORGERY – A CONTRACTOR CANNOT CLAIM IGNORANCE OF REAL ESTATE PRICES AND CANNOT BENEFIT FROM GOOD FAITH AS A THIRD PARTY.
Following the title deed cancellation and registration lawsuit between the parties, the decision rendered by the local court dismissing the case was appealed by the plaintiff’s attorney within the legal time limit. The file was reviewed, the report of the Examining Judge … was read, the explanations were heard, and the necessary deliberations were made.
DECISION
DECISION
The case concerns the request for cancellation of title and registration based on the legal grounds of forgery.
The plaintiff claims that he was authorized to sell the immovable property with the cadastral number 1109 (new cadastral number 33), of which he is the registered owner, to the third party … by means of a power of attorney dated January 28, 2005, numbered 2657, issued by the 10th Notary Public, bearing a forged signature, that the signature was affixed without his permission or knowledge, and that the property in question was transferred by … in his capacity as attorney to the defendant … on February 2, 2005, and then to the other defendant … on March 15, 2005, by way of sale. He requested that the title deed be canceled and registered in his name.
The defendant … argued that he was a bona fide third party who purchased the immovable property and requested that the case be dismissed.
The defendant … did not respond to the lawsuit and did not attend the hearings.
The court ruled that the case should be dismissed on the grounds that the defendant … was a bona fide third party and that there was no passive hostility on the part of the other defendant …
From the file contents and the evidence gathered; while the property in dispute belonged to the plaintiff, using the power of attorney granted to … outside the lawsuit on 28.01.2005 with journal number 2657, the property was transferred to the defendant … by way of sale on 02.02.2005 by … acting as the plaintiff’s representative. and that on March 15, 2005, … transferred the property to the other defendant … by sale again, showing a price of TL 8,000. The report of the Physics Department of the … Institution dated December 16, 2005, states that the signature on the power of attorney dated January 28, 2005, which contains the authority to sell on behalf of the plaintiff,
is not the plaintiff’s handwriting. There is no doubt that the sale to the defendant … made with the forged power of attorney is invalid. If the other defendant …, who acquired the immovable property from the defendant …, acted in good faith,
he will undoubtedly benefit from the protection of Article 1023 of the Turkish Civil Code.
In the response petition dated 23.06.2005, the defendant … argued that he was the contractor and that he purchased the real estate in question through a real estate agent for 100,000.00 TL. The sale price indicated in the official contract is 8,000 TL, and the value of the property determined by the expert at the time of sale and
the date of the lawsuit is 348,000.00 TL.
Although the defendant … argued that he paid 100,000.00 TL to the seller, he failed to substantiate this argument in a proper manner. Even if he had substantiated it, given that he paid only 1/3 of the price determined by the court,
it cannot be accepted that he acted as a prudent merchant. In other words, it cannot be said that a contractor is unaware of real estate prices. In this case, it cannot be accepted that he acted in good faith by purchasing real estate worth 348,000.00 TL for 8,000 TL, and therefore that he would benefit from the protection of Article 1023 of the Turkish Civil Code.
Therefore, the case should have been accepted, but it is incorrect to render a judgment as stated in the written decision based on an erroneous assessment.
Given this situation, it is incorrect to rule as stated in the judgment based on an erroneous assessment when the case should have been accepted.
The plaintiff’s appeal objections are accepted, and the judgment is REVERSED pursuant to Article 428 of the Code of Civil Procedure No. 1086 (by reference to the transitional Article 3 of Law No. 6100), and the advance fee is returned to the appellant. It was unanimously decided on 09.04.2018.