Decision Of The Court Of Cassation Regarding The Claim For Compensation Arising From The Withholding Of The Title Deed Registry
T.C. JUDICIARY
20th Civil Chamber
Basis: 2015/7834
Decision: 2016/7381
Date of Decision: 22.06.2016
COMPENSATION CLAIM – CLAIM FOR COMPENSATION ARISING FROM THE WITHHOLDING OF THE TITLE DEED REGISTRY – EVALUATION OF WHETHER THE IMMOVABLE PROPERTY CAN BE CONSIDERED AS LAND BY RE-EXAMINING WHETHER THE IMMOVABLE PROPERTY CAN BE CONSIDERED AS LAND – IMPROPER JUDGMENT BASED ON INCOMPLETE EXAMINATION AND RESEARCH
SUMMARY: In order for the court to reach the correct conclusion, it should be re-examined and evaluated whether the immovable property, which is surrounded by agricultural lands and not surrounded by residential areas, can be considered as land within the framework of the decision of the Council of Ministers and the decision of the Supreme Court of Appeals Unification Council of Jurisprudence; if it is determined that the immovable property is not considered as land according to these principles, the value of the immovable property on the date to be taken as the basis for the evaluation should be determined according to the agricultural income method, taking into account the qualities of the nearest agricultural lands, and a decision should be made accordingly. It is contrary to the procedure and the law to make a judgment based on incomplete examination and research without considering the explained issues.
(Article 1007 of the Law No. 4721) (Article 49 of the Law No. 6098) (Article 11 of the Law No. 2942) (YİBK 17.04.1998 T. 1996/3 E. 1998/1 K.)
Case: The defendant requested the Court of Cassation to review the judgment rendered at the end of the hearing of the lawsuit between the parties, and after it was decided to accept the petition of appeal, which was understood to be in due time, the file was examined and considered accordingly:
Decision: With the petition dated 10/02/2014, the plaintiff real person’s attorney stated that the immovable property numbered 1687 parcel in the village of … was registered in the title deed in the name of the attorneys, and that the title deed was canceled with the decision of the … Civil Court of First Instance numbered … on the grounds that the immovable property was within the coastal edge line, and requested that the compensation of 52.500,00.-TL be taken from the defendant and given to the plaintiff, without prejudice to his rights regarding the surplus.
The defendant’s attorney requested the dismissal of the lawsuit.
The court decided to accept the lawsuit, to collect the compensation of 52.500,00.-TL determined in the expert committee report dated 09/02/2015 for the part of the immovable subject to the lawsuit within the coastal edge line, with interest to be accrued as of 10/02/2014, the date of the lawsuit … … from the defendant and to pay it to the plaintiff; the judgment was appealed by the defendant.
According to the statement in the statement of claim, the lawsuit is a lawsuit for compensation arising from the keeping of the land registry pursuant to Article 1007 of the TMK numbered 4721.
… district, … village, … village, … village, parcel numbered 605 with an area of 452.800 m², the immovable property in the nature of a field, cadastral registration was made in the name of individuals in the land survey carried out in the region, and the parcels numbered 1687 and 605 subject to the lawsuit are one of the parcels resulting from the parceling process carried out on the immovable. The plaintiff … purchased parcel 1687 on 07.09.1995 with journal number 324 and it was registered in his name. The plaintiff purchased the immovable property based on the principle of trust.
In the examination of the title deed records, documents and finalized judgment samples brought to the file; it is understood that the title deed registration of the immovable property numbered 1061 parcel subject to the lawsuit in the name of the plaintiff was canceled in the case file numbered … of the … Civil Court of First Instance … because the immovable property subject to the lawsuit was within the coastal edge line and the decision was finalized on 08/02/2013 and the judgment has not yet been executed. The present lawsuit was filed on 10/02/2014.
1007 of the TMK numbered 4721. Article 1007 of the TMK numbered 4721 states that “The State is responsible for all damages arising from the maintenance of the land registry. The State shall have recourse to the officials who are at fault in the occurrence of the damage.” According to this provision, the responsibility of the State is the strict liability arising from the trust in the official registry. The strict liability arising from the reliance on the registry is based on the change or loss of the interests and rights in rem that depend on the land registry as a result of incorrect registration, and the deprivation of these rights. This is because the State, which undertakes and undertakes to keep the registers accurate, is also obliged to pay the damages arising from untrue and baseless records.
Article 49 et seq. of the Code of Obligations No. 6098 provides that liability for damages arising from tortious acts arises on the date of the tortious act and the statute of limitations begins. In the acceptance of the existence of objective (perfect) liability regulated in Article 1007 of the Turkish Civil Code No. 4721, the State’s indemnification liability, which aims to compensate for all damages arising from the maintenance of the land registry, starts on the date of the intervention to the right of ownership in the form of change of ownership or disposal of ownership and similar forms, in other words, on the date of the finalization of the court decision canceling the title deed registration due to the fact that a place is public property or pasture, pasture, winter pasture, sandy area within the coastal edge line. In this case, the determination of the reasonable and real value of the immovable property should be based not on the date of the lawsuit, but on the date of the interference with the right to property and the date of the damage.
The compensation to be awarded due to the complete loss or evacuation of the right of ownership must be determined according to Article 11 of the Law No. 2942, the value of the immovable property at the date of the evaluation explained above. According to subparagraphs 11/1-(f) and (g) of the aforementioned article, it is explained that in the case of lands, the net income that the immovable property or resource will bring if it is used as it is, according to its location and conditions on the date of expropriation (evaluation), and in the case of lands, it will be determined over the sales value to be determined according to the precedent sales that do not have a special purpose before the day of expropriation (evaluation). Therefore, while determining the value of the immovable property for compensation, it is necessary to determine whether its quality is land or field.
Pursuant to the decision of the Council of Ministers dated 28.02.1983 and numbered 1983/6122, which was partially adopted by the Court of Cassation, in order for an immovable that is not included in the zoning plan to be considered as a land, it must be within the boundaries of the municipality or adjacent area, but it must be within the boundaries of the municipality or adjacent area, benefit from municipal services (road, water, electricity, transportation, garbage collection, sewerage, lighting, etc.) provided by the municipality because it is residential or because it will be made residential. If the immovable is within the master development plan, in accordance with the decision of the Grand General Assembly of the Supreme Court of Appeals Unification of Jurisprudence dated 17.04.1998 and numbered 1996/3-1998/1, it is necessary to evaluate the date of its inclusion in this plan and its location in the plan, its access to infrastructure services and transportation facilities, its distance to the municipality center, and whether there is a possibility of construction for housing purposes in terms of its use.
In the light of all these explanations, it is not possible to accept that an immovable, which is not within the master and implementation zoning plan and is not surrounded by residential areas, is considered to be in the nature of land just because it does not have the possibility of actual agriculture and is subject to special parceling. For this reason, the examination and research conducted by the court regarding the nature of the immovable is not deemed sufficient.
As such, in order to reach the correct conclusion, the court should re-investigate and evaluate whether the immovable, which is surrounded by agricultural lands and not surrounded by residential areas, can be considered as land within the framework of the above-mentioned decision of the Council of Ministers and the decision of the Supreme Court of Appeals Unification Council of Jurisprudence; if it is determined that the immovable is not in the nature of land according to these principles, the value of the immovable on the date to be taken as the basis for the assessment should be determined according to the agricultural income method, taking into account the qualities of the nearest agricultural lands, and a decision should be made accordingly.
It is contrary to the procedure and the law to make a written judgment based on incomplete examination and research without considering the explained issues.
Conclusion For the reasons explained above, it was unanimously decided on 22.06.2016 to accept the appeal objections of the defendant’s attorney and to VACATE the judgment.