In Cases Where There Is A Public Interest, A Decision Should Be Made For The Cancellation Of The Expropriated Part For The Road From The Title Deed
General Assembly of Civil Chambers 2013/2393 E. , 2015/2361 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held due to the “determination and registration of the expropriation price” lawsuit between the parties; upon the request of the attorneys of the parties for the examination of the decision dated 29.12.2011 and numbered 2010/397 E., 2011/585 K. given by the Izmir 10th Civil Court of First Instance on the acceptance of the lawsuit, the 18th Civil Chamber of the Court of Cassation, with the decision dated 16.04.2012 and numbered 2012/3069 E., 2012/3985 K;
(… According to the writings in the file, the evidence on which the decision is based, the legal reasons and especially the appreciation of the evidence, the other appellate objections are not relevant.
However;
1-According to the last paragraph of Article 15 of the Expropriation Law, the determination of the value made by the experts shall be based on the day the documents are submitted to the court by the administration. According to the lawsuit petition in the file, the documents for the determination of the expropriation value by the plaintiff’s attorney were submitted to the court on 16.08.2010. Accordingly, while updating the m² value of the immovable examined by taking the precedent by the expert board to the date of the lawsuit (evaluation), the value was determined by taking the index figure of 12161.1 for February 2010, while the 1994=100 index for 1994 should have taken the index figure of 12604.31 for August 2010,
2-Pursuant to subparagraph (d) of Article 11 of the Law No. 2942 amended by the Law No. 4650, the property tax values should also be taken into consideration in the comparison of the immovable subject to the lawsuit and the precedent. If the ratio of the minimum m² values taken as basis for the property tax and the ratio taken as basis for the evaluation in the expert reports are exorbitantly different from each other, this difference and contradiction should be eliminated. In this respect, the fact that the minimum m² value based on the property tax as of 2010 for the street or street to which the precedent is connected has not been obtained and the conformity of the expert report has not been checked in this respect,
3-Deciding to abandon the expropriated portion to the road, although the registration request was made in the lawsuit petition,
Not considered correct. ….)
The case was reversed 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
After it was examined by the General Assembly of Civil Chambers and it was understood that the decision of resistance was appealed in due time and it was decided to reject the request for a hearing in accordance with the provision of paragraph 438/II amended by the Law No. H.U….2494 as of the date of the decision of resistance, and after the papers in the file were read, the necessity was discussed:
The lawsuit is related to the determination of the expropriation price and the request for registration.
The plaintiff’s attorney claimed that 3.971,32 m² of the 18.835,00 m² immovable registered on parcel numbered 124, block 1987, parcel 124, whose usufruct right belongs to the defendant Armağan Çağlayan, was decided to be expropriated by the decision of the Municipality Council due to the fact that 3.971,32 m² of the immovable was left on the road in the zoning plan, and that the defendants were invited for reconciliation but did not participate in the meeting, and requested a decision to determine the expropriation price of the immovable subject to the lawsuit and to register the immovable in the name of the Municipality.
Defendant Armağan Çağlayan’s attorney; plaintiff … the price offered for the immovable is very low, the real prices are generally not reflected in the official records in the sales at the title deed, the owners of the immovable are victimised in the determination of the price in the absence of a sale including the real price, the real prices can be determined based on the prices of the immovable offered for sale, The expropriated part of the immovable subject to the lawsuit is adjacent to the oldest settlement area of Izmir, close to the sea in the newly established city centre, close to the sea, open, spacious, surrounded by modern construction and adjacent to the Smyrna Square, which is the symbol of the foundation of Izmir 5000 years ago, and also reported its precedents.
The court, on the grounds that the case should be accepted according to the expropriation price determined, determined that the expropriation price of the 3.971,32 m² part of the parcel numbered 1987, block 124 is 4.451.849,72 TL, that the expropriation price is 4.451.849,72 TL, that the expropriation price is paid equally to the defendants who are the title deed owners according to their shares in the title deed, that the 3.971,32 m² part of the immovable subject to the lawsuit is 3. 971,32 m2 of the immovable property subject to the lawsuit, cancelling the title deed in the name of the defendants and abandoning it as a road”; upon the appeal of the attorneys of the parties; the decision was reversed by the Special Chamber with the reasons stated above.
The Local Court decided to comply with the 1st and 2nd subparagraphs of the Special Chamber’s reversal decision and to resist the part indicated in the 3rd subparagraph. The plaintiff … attorney appealed the judgement in terms of both the decision to resist and the decision to comply; the attorney for the defendants requested the approval of the decision to resist and appealed the decision rendered by complying.
Dispute that came before the General Assembly of Civil Chambers by way of resisting; although the petition for registration was requested in the petition for lawsuit; it is centred on whether to decide on the registration of the expropriated part of the immovable property subject to the lawsuit or whether to decide on the abandonment of this part to the road.
I- Regarding the objections of the plaintiff’s counsel and the defendants’ counsel to the court’s decision made by complying with subparagraphs (1 and 2) of the reversal decision;
It is clear that the court’s judgement, which was established by complying with subparagraphs (1) and (2) of the Special Chamber’s reversal decision, is in the nature of a new judgement based on new reasoning.
As such, the task of examining this new judgement on appeal belongs to the Special Chamber, not the General Assembly of Civil Chambers.
Therefore, the file should be sent to the Special Chamber for the examination of the appeal objections of the attorneys of the parties in terms of the complied part.
II- As for the appeal of the plaintiff’s attorney against the court’s decision to resist against the reason for reversal in paragraph (3) of the judgement of reversal;
First of all, it should be noted that; if the expropriated immovable property has turned into a quality that does not need to be registered in the registry due to the public service to which it is allocated, after the court cancels the title deed registration in the name of the owner, a decision of abandonment from the title deed is made instead of a registration decision in the name of the administration. Although paragraph 11 of Article l0 of the Expropriation Law amended by the Law No. 4650 states that the court shall decide to abandon the registry record upon request, if the expropriated immovable property becomes a public property that is not subject to registration, such as a road, lake area, etc. specified in Article 16 of the Cadastral Law No. 3402, the court shall make the decision of abandonment ex officio.
According to Article 999 of the Turkish Civil Code (TCC) No. 4721, immovables that are not subject to private ownership and allocated for the benefit of the public are not registered in the registry unless the establishment of a real right that requires registration is in question. If an immovable registered in the land registry becomes an immovable not subject to registration, it shall be removed from the land registry.
In Article 16/B of the Cadastral Law No. 3402,
“Immovable properties such as pastures, pastures, winter pastures, grazing lands, threshing and fairgrounds, which are allocated for the benefit of the public with or without money or which have been used by the public since time immemorial, or which are proved by documents or by expert or witness statements, shall be demarcated, the area shall be calculated by assigning a parcel number, and such immovable properties shall be recorded in the special registry.
This delimitation does not constitute registration and the immovable properties determined in this way are not subject to private property, without prejudice to the provisions written in their special laws.
Medium properties such as roads, squares and bridges shall only be shown on the map.”
As it is emphasised in Article 715 of the Turkish Civil Code, it is clear that the properties, the use of which is left to the public, are under the sovereignty and saving of the state and they cannot be subject to private property in any way. A similar provision is also included in Article 16/B of the Cadastral Law No. 3402, and it is stated that the immovables of the middle property shall not be subject to private property, and that no written transaction can be made about them in the property registry. As village middle properties such as pastures, plateaus, roads and squares are places that are freely utilised by everyone without consulting anyone and without obtaining permission and consent from any authority, it is also obligatory to protect and safeguard such places by everyone.
Article 1008 of the Turkish Civil Code No. 4721 regulates registration and states that the right of ownership regarding immovable property must be registered in the land registry. As it is known, the term “registration” is used only for immovables that may be subject to private ownership.
“Cancellation”, on the other hand, means the removal of the registration in the land registry. Article 999 of the Turkish Civil Code No. 4721 titled “Immovables not to be registered”. Based on the provision of Article 999 of the Turkish Civil Code No. 4721 titled “Immovables that cannot be registered”, the areas stated to be reserved for public service in Article 18/3 of the Zoning Law No. 3194, such as “primary and secondary education institutions affiliated to the Ministry of National Education, roads, squares, parks, car parks, car parks, playgrounds, green areas, places of worship and police stations”, must be abandoned. For this reason, it is absolutely necessary to use the expression “to be abandoned” in the decision.
In the light of the above explanations, in the examination of the concrete case, considering that private ownership has ended and public interest is in question, there is no inconsistency in the decision to abandon the part expropriated as a road from the title deed.
During the discussions in the General Assembly of Civil Chambers, some members requested the reversal of the decision of resistance on the grounds that it would be correct to decide on the registration of the expropriated part of the immovable property in the name of the plaintiff, but this opinion was not adopted by the majority of the Board for the reasons explained above.
For all these reasons, the local court’s ruling on the cancellation of the part expropriated as a road from the title deed is in accordance with the procedure and the law, and the decision of resistance should be approved.
CONCLUSION:
1- For the reasons shown in sub-paragraph (I) above; the file should be sent to the 18th LAW CHAPTER for the examination of the appellate objections of the attorneys of the parties in terms of the complied part,
2- For the reasons explained in sub-paragraph (II) above; it was decided by majority of votes at the second meeting held on 04.11.2015 that the appellate objections of the plaintiff’s counsel against the decision of resistance be rejected and the decision of resistance be upheld.
VOTE AGAINST
The dispute between the Local Court and our Chamber is whether the immovable property subject to the lawsuit, which was expropriated as a road, should be registered as a road in the name of the plaintiff, or should it be decided as a road.
As it is known, with the Law No. 4650 dated 24.04.2001, revolutionary amendments were made to the Expropriation Law No. 2942, inspired by the violation decisions of the European Court of Human Rights against our State, and considerable obligations were imposed on the administration carrying out the expropriation.
For example, before the amendment, while the owner would file a lawsuit for price increase and the owner would receive his/her receivable only through execution after the decision was finalised, after the amendment, the administration would file a lawsuit for determination and registration of the price, and the price determined by the court would be deposited by the administration in a national bank specified by the court on behalf of the owner and paid to the owner together with the decision. Moreover, the lawsuit must be finalised within four months, and in case the lawsuit is not finalised, legal interest is charged from the end of the 4-month period until the date of the decision.
Article 10, which concerns our concrete case, includes procedural provisions, and with the amendment made in Article 5 of the Law No. 4650, a very detailed regulation has been made, and it has been regulated in a very clear and clear manner how the administration will file a lawsuit, what it will request from the court, and what the court will finalise the case and what it will decide, by following which procedures and within which period of time.
Paragraph 1 of the aforementioned article reads as follows: “In the event that expropriation cannot be carried out through the purchase procedure, the administration shall apply to the Civil Court of First Instance where the immovable property is located by attaching the information and documents collected in accordance with Article 7, the price determination made in accordance with Article 8 and other information and documents in this regard to a petition, and requests the determination of the expropriation price of the immovable property and the decision to register it in the name of the administration in return for the payment of this price in cash or in instalments if the expropriation has been made in accordance with the second paragraph of Article 3.”
In paragraph 8, after explaining the procedural rules regarding the determination of the price, the last sentence reads as follows: “In the event that the administration submits a receipt stating that the expropriation price has been deposited in the name of the rightful owner or, in cases where the rightful owner cannot be determined, that it has been blocked to be given to the rightful owner to be revealed in the future, the court shall decide to register the immovable property in the name of the administration and to pay the expropriation price to the rightful owner, and this decision shall be notified to the land registry office and the bank where the money was deposited.”
Paragraph 13 stipulates that “If the expropriated property has turned into a property that does not need to be registered in the registry due to the public service to which it is allocated, the court shall decide to cancel the registry upon request.”
As can be seen, the provision on registration is clearly and explicitly written in 3 separate paragraphs.
Accordingly, the claimant administration shall request the determination of the expropriation price and the registration of the expropriated immovable in the name of the administration in return for the payment of this price. The court shall decide on the registration of the immovable property in the name of the administration when the receipt indicating that the determined price has been blocked to the bank shown in the announcement on behalf of the right holder is submitted. In this case, the request will be registration and the decision will be registration. This is the rule.
Although this is the rule, if the expropriated immovable property has turned into a property that does not need to be registered in the registry due to the public service to which it is allocated, the court will decide to cancel the registry record “upon request”. This is the exception to the rule. If the immovable property has turned into a quality that does not need to be registered in the registry in terms of the public service to which it is allocated, the court shall decide to abandon it upon request, that is, if the plaintiff administration explicitly requests abandonment, and if the plaintiff administration does not have such a request, registration shall be decided as explained above.
In the light of these explanations, when the concrete case is returned to the concrete case; a part of the immovable subject to the lawsuit was expropriated by the plaintiff … due to the fact that it remained on the road in the zoning plan, and the plaintiff …’s attorney requested the determination of the expropriation price of the immovable subject to the lawsuit and the registration of the immovable on behalf of the Municipality. There is no request for cancellation. In this case, the work to be done by the court should be to decide to register the expropriated part of the immovable in the name of the plaintiff … as a road according to Article 10/13 of the Expropriation Law No. 2942 amended by Law No. 4650. Deciding on abandonment without the plaintiff’s request and ignoring the registration request will clearly contradict the mandatory provision of the Law.
At this point, the question of whether the provision of Article 999 of the Turkish Civil Code No. 4721 is applicable in the concrete case will arise.
Indeed, there was no registration provision in Article 10 of the Expropriation Law No. 2942 before the amendment made by Law No. 4650 in 2001. When there was no provision in the Special Law, of course, the general law would be applied. For this reason, before the amendment in 2001, the courts were making cancellation decisions by applying Article 999 of the Turkish Civil Code (previously Article 912 of the Turkish Civil Code). Since the 2001 amendment to Article 10 of the Expropriation Law introduced a special regulation, the general provision no longer has the ability to be applied in expropriation cases, and the special law provision has taken precedence.
A judgement cannot be made with the provision of the general law while there is a regulation of the special law. In other words, while the procedures for the determination of the expropriation price are determined in accordance with the provisions of the amended Article 10 of the Expropriation Law, it is inconceivable that the registration decision will be made in accordance with the general provisions separated from the regulations in this article. Moreover, the immovables subject to expropriation are immovables subject to private property.
However, immovables subject to Article 999 of the Turkish Civil Code are immovables that are not subject to private ownership and are reserved for public use. While these immovables are reserved for public use by administrative or court decision, no price is paid in return. For example, ancient roads, ancient pastures, allocated pastures, winter and spring pastures. Such places are not subject to private ownership in any way and cannot be acquired by possession, regardless of the duration.
This is not the case in expropriation. When an immovable subject to private property is expropriated, the expropriation process is carried out in accordance with the procedures and principles in the aforementioned Law. Most importantly, if the parties cannot agree on the price, a fair and equitable price shall be determined by the court and paid to the rightful owner and the property shall be transferred to the administration.
However, the transfer of ownership to the administration does not mean that the administration is the full owner. Because the administration is obliged to use the immovable in accordance with the purpose of expropriation. Any contrary behaviour gives rise to the obligation to return the immovable to the former owner. Articles 23 and 22 of the Expropriation Law regulate this obligation. According to Article 23, if the administration leaves the expropriated immovable property as it is for a period of five years and does not allocate it for the purpose of expropriation, the former owner may request its registration in his name by paying the expropriation price together with interest within a period of one year from the end of five years.
According to Article 22, if, after being used for the purpose of expropriation, the necessity of allocation for the purpose of expropriation no longer exists, the administration may sell and dispose of this immovable property as private property. However, in this case, it shall first notify the former owner or his heirs and ask them to declare whether they will purchase the immovable property or not.
Otherwise, it will be liable for compensation. Now is the right time to ask the following question. How will the rights and obligations stipulated in Articles 22 and 23 of the Expropriation Law be fulfilled in the event of a decision to abandon the title deed despite the express provision of the law and the request of the expropriating administration? In that case, the special provision regulated under Article 10/13 of the Expropriation Law shall be applied, not the general provision regulated under Article 999 of the TCC.
After all these explanations, there is no room for doubt that the provision of Article 16/B of the Cadastral Law No. 3402 is applicable to the disputes in the Cadastral Courts in relation to the cadastralised areas. The Cadastral Court will apply Article 16/B of the Cadastral Law when making a decision regarding the public properties listed in the aforementioned article, and will not look into how Article 10/13 of the Expropriation Law regulates this issue. Nor will it go to Article 999 of the TMK. The Civil Court of First Instance hearing the case for the determination and registration of the expropriation price shall decide in accordance with Article 10/13 of the Expropriation Law and shall not take into consideration Article 16/B of the Cadastral Law. Otherwise, it would be meaningless to regulate a subject or an issue by a special law.
As for the question of whether a place allocated for public use by expropriation can be registered as a road in the name of the expropriating administration; the fact that the immovable property expropriated as a road is registered as a road in the name of the expropriating administration does not turn it into private property. Just as the registration of forest areas in the name of the Treasury due to the special provision in the Forestry Law No. 6831 does not turn the forest into private property, the place registered in the name of the administration as a road in accordance with the Expropriation Law does not turn into private property. The provisions of the registration shall be subject to the Expropriation Law and the rights and obligations therein shall apply.
Finally, it should be noted that in another dispute, which is exactly the same as the concrete case, the General Assembly of the Court of Cassation, in its case law dated 05.11.2014 and numbered 2013/18-1119 Esas 2014/836 Decision, adopted the conclusion reached by our Chamber and reversed the insistence decision of the local court, which decided to abandon instead of registration, with a majority exceeding 2/3. While there is no justifiable reason to abandon the existing case law after a year, it has been deemed useful to state the opinion that it is not justified in terms of justice and unity of practice to come to a different conclusion that may be subject to unification of case law, without revealing the existence of such a justifiable reason.
For these reasons, while the reversal decision of our Chamber is more in accordance with the procedural and legal provisions and the decision of the Court of Cassation General Assembly of Civil Chambers, I do not agree with the valuable opinion of the majority that the local court’s decision of resistance should be adopted and approved.
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