Courts Of Judicial Jurisdiction Are In Charge Of Land Registry Cancellation And Registration Cases
General Assembly of Civil Chambers 2017/1756 E. , 2017/1553 K.
“Case Law Text”
COURT :
Civil Court of First Instance
At the end of the trial held due to the lawsuit between the parties for “cancellation and registration of title deed based on the title deed allocation certificate, compensation in case it is not available”, the decision of Gebze 2nd Civil Court of First Instance dated 09.07.2013 and numbered 2012/279 E. and 2013/328 K. on the rejection of the lawsuit was requested by the plaintiff’s attorney, and with the decision of the 14th Civil Chamber of the Court of Cassation dated 06.05.2014 and numbered 2014/2244 E.-2014/5823 K:
“…The lawsuit is related to the request for cancellation of title deed based on the title deed allocation certificate and compensation in the absence of registration.
The defendant defended the rejection of the lawsuit.
Court decided to dismiss the lawsuit in terms of jurisdiction on the grounds that the dispute will be resolved in administrative jurisdiction.
The judgement was appealed by the plaintiff’s attorney.
As stated in the decision of the General Assembly of the Court of Cassation dated 04.12.1996 and numbered 1996/14-763-864, the title deed allocation certificate is not a certificate of ownership, but only a possession document that determines the actual use and provides personal rights to the person concerned. The existence of a title deed allocation certificate is not sufficient for the registration of the allocated land in the name of the allocated person or his heirs. In order for the place within the scope of allocation to be registered in the name of the right holder;
-The existence of a title deed allocation document that maintains its validity in legal terms,
-The zoning plan pursuant to Article 18 of the Law No. 3194 or the improvement-architecture plans pursuant to the Law No. 2981 amended by the Law No. 3290 have been made in the place subject to allocation,
-Relevant person has not been allocated from another place in accordance with the title deed allocation certificate,
-The place subject to allocation is not allocated for public service and is in the residential area according to the zoning plan,
-In order to determine whether the place subject to allocation and the immovable requested to be registered are the same place and to determine the characteristics of the immovable, a discovery shall be made in the locality by expert witnesses,
-The price of the land subject to allocation must have been paid, if not, the current value of the immovable on the date of the lawsuit must have been determined by expert witnesses and deposited to the court cashier or to the deposit place to be determined before the judgement.
-During the creation of the zoning parcels, it is necessary to determine whether the regulation partnership share has been deducted from the parcel subjected to the zoning parcel in accordance with Article 18/b-c of the Law No. 2981 amended by the Law No. 3290, and if so, the rate applied,
As a result of the examination to be made by the court in line with the above-mentioned conditions, if it is accepted that the legal conditions for the acceptance of the registration request are met, it should be decided to register the amount remaining after the reduction to be made at this rate from the allocation amount, taking into account that the regulation partnership share (DOP) applied in the place subject to allocation in accordance with Article 10/C-2 of the Law No. 2981 amended by the Law No. 3290 is also binding on the plaintiff.
Other persons other than those stated in the law do not have the possibility to make a request based on the Zoning Amnesty Law. However, Article 25 of the Regulation on the Implementation of the Law No. 2981, some articles of which have been amended and some articles have been added by the Law No. 3290, allows the assignment of the allocation made to the persons covered by the law to third parties by them.
However, in such cases, it is necessary to investigate whether the transferees can benefit from the Law No. 2981. According to the 13/a provision of the Law No. 2981, the persons to whom land will be allocated must not own a land suitable for building a house or a house or an independent part of an apartment building or a building part of which is used as a workplace within the boundaries of the municipality and neighbouring areas where he or his spouse or minor child resides.
In addition to all these, Article 2 of the Administrative Procedure Law No. 2577 titled “types of administrative cases and the limit of administrative jurisdiction” clearly regulates the types of administrative cases and administrative jurisdiction. According to this regulation, the types of administrative lawsuits and administrative jurisdiction are as follows: annulment lawsuits filed for the cancellation of administrative actions because they are contrary to the law in terms of authority, form, reason, subject matter and purpose, full remedy lawsuits filed due to administrative actions and transactions, and lawsuits related to disputes between the parties arising from administrative contracts.
It is stated that the judicial power is limited to the control of the conformity of administrative actions and transactions with the law, and no regulation has been made that the judiciary will make decisions in the nature of administrative actions and transactions or in a way to remove the discretionary power of the administration by restricting the fulfilment of the executive duty in accordance with the form and principles specified in the law.
In the light of these principles, when the concrete case is examined; the plaintiff has requested the cancellation of the title deed based on the title deed allocation certificate and the compensation to be decided if the title deed is not cancelled and registered, and as explained above, since the cancellation of an administrative action and decision is not requested, such disputes should be resolved in the judicial jurisdiction.
While the court should evaluate the evidence of the parties and make a decision on the merits of the case in line with the principles of our chamber explained above, it was not deemed correct to reject the case on the grounds that the administrative jurisdiction was in charge, and therefore the decision had to be reversed. …”
The case was reversed with the justification and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
The General Assembly of Civil Chambers examined the appeal decision and discussed the necessity after it was understood that the appeal was filed in due time and the papers in the file were read:
Lawsuit is related to the cancellation and registration of the title deed based on the land allocation certificate, and if this is not possible, the claim for compensation.
The defendant’s attorney claimed that the administrative jurisdiction has jurisdiction in the case and filed a jurisdictional objection.
According to the decision of the Court of Dispute dated 05.11.2012 and numbered 2012/140 E., 2012/223 K., it was decided to dismiss the petition due to jurisdictional grounds on the grounds that the administrative jurisdiction has jurisdiction over the lawsuits filed based on the title deed allocation certificate issued in accordance with Law No. 2981. The decision was appealed by the plaintiff’s attorney, reversed by the Special Chamber with the justification shown above, and the court resisted the previous decision.
The decision was appealed by the plaintiff’s attorney.
Dispute before the General Assembly of Civil Chambers by way of resisting is whether the lawsuits filed for the cancellation and registration of the title deed based on the title deed allocation certificate issued in accordance with the Law No. 2981, and if not, for the collection of compensation, will be heard in the judicial jurisdiction or in the administrative jurisdiction.
First of all, it is useful to explain the legal regulations on the subject.
In our country, judicial remedies are classified in three main groups as constitutional jurisdiction, administrative jurisdiction and judicial jurisdiction, and administrative jurisdiction can be defined as the judicial unit that decides on the resolution of disputes arising from the administrative activities of the administration in the field of administrative law or tries to resolve legal disputes between individuals and the administration.
Law No. 2576 on the Establishment and Duties of Regional Administrative Courts, Administrative Courts and Tax Courts and Law No. 2577 on the Administrative Procedure Law provide general provisions on the functioning of regional administrative courts, administrative courts and tax courts, and clearly define the types of administrative cases, the limits of administrative jurisdiction and the duties of administrative courts. Article 2 of the Administrative Procedure Law No. 2577 titled “Types of administrative cases and the limit of administrative jurisdiction” lists the types of administrative cases.
According to this provision, administrative lawsuits consist of cancellation lawsuits filed against administrative actions, full remedy lawsuits filed by those whose personal rights are directly affected due to administrative actions and proceedings, and lawsuits regarding disputes arising between the parties due to all kinds of administrative contracts made for the execution of one of the public services, except for disputes arising from concession agreements and contracts for which arbitration is foreseen, and the works assigned by other laws.
Accordingly, “full judgement” lawsuits to be filed by persons who have suffered damages due to administrative actions and transactions shall be heard and resolved in administrative jurisdiction. Administrative action consists of positive or negative behaviours and actions taken by public administrations and institutions in accordance with the rules and requirements of administrative law. Administrative actions, on the other hand, are transactions made on the basis of administrative laws. The actions and transactions of the administration are the legal and material manifestations of its activities in accordance with the rules and requirements of administrative law by using its public power (public authority) in the field of public law.
Administrative jurisdiction is limited to the control of the conformity of administrative actions and transactions with the law. Administrative courts are not authorised to review the conformity of administrative acts and procedures with the law. They cannot make judicial decisions in a manner that would restrict the execution of the executive duty in accordance with the forms and principles set forth in the laws, or in the nature of administrative actions and transactions, or in a manner that would remove the discretionary power of the administration (Article 2/2 of the Law No. 2577).
On the other hand, Article 15/1-a of the Administrative Trial Procedure Law No. 2577 stipulates that the lawsuits filed in matters where the judicial jurisdiction has jurisdiction shall be dismissed. Thus, the cases in which the law explicitly considers the judicial jurisdiction to have jurisdiction are excluded from the scope of the administrative jurisdiction; in these cases, it is adopted that the case will be heard in the judicial jurisdiction regardless of the nature of the transaction subject to the case.
In the light of these principles and explanations, when the concrete case is examined: the plaintiff’s request is for the cancellation of the title deed and registration in the name of the plaintiff on the basis of the title deed allocation certificate, which is a certificate of possession that is the result of an administrative action and grants a personal right to the person concerned, and if this is not possible, the collection of the fair value of the immovable and the structure on it. In the case at hand, there is no dispute regarding the issuance of the title deed allocation certificate. Because the title deed allocation certificate issued in favour of the plaintiff’s dealer Rafet Duman was written in the declarations section of the title deed with the 9079 journal dated 01.06.1987.
In that case, when the issues that the action and transaction of the administration ends with the issuance of the title deed allocation certificate in the places with title deed allocation certificate in accordance with the Law No. 2981, and that it is possible to decide on the cancellation and registration, which is one of the decisions regarding the same of the immovable subject to the lawsuit, only in the judicial jurisdiction, are evaluated together; It should be accepted that the courts of judicial jurisdiction have jurisdiction in the title deed cancellation and registration cases to be filed by those who claim to be the right holder based on the title deed allocation certificate.
In this respect, it is not correct for the court to issue a decision of non-jurisdiction on the grounds that the administrative jurisdiction has jurisdiction without considering the above-mentioned material and legal facts.
As such, while the local court should comply with the decision of the Special Chamber, which was also adopted by the General Assembly of Civil Chambers, resisting the previous decision is against the procedure and the law.
Therefore, the decision to resist should be reversed.
CONCLUSION:
It was unanimously decided on 06.12.2017, with the acceptance of the appeal objections of the plaintiffs’ attorneys, that the decision to resist be reversed for the reasons shown in the Special Chamber’s decision of reversal, and that the pre-appeal fee be returned to the depositor if requested, with the way of decision correction closed.
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