It Is Possible To Exercise The Optional Rights Under Article 125 Of The Code Of Civil Procedure In The Preemption Right Case
General Assembly of Civil Chambers 2017/2262 E. , 2019/649 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held due to the case of “cancellation and registration of title deed based on the right of pre-emption”, the decision of Mardin 1st Civil Court of First Instance dated 16.05.2013 and numbered 2010/864 E., 2013/180 K. dated 16.05.2013 and numbered 2010/864 E., 2013/180 K. was appealed by the defendants’ attorney and reversed by the decision of the 14th Civil Chamber of the Court of Cassation dated 24.06.2014 and numbered 2014/6863 E., 2014/8456 K., but this time, upon the request of the plaintiff’s attorney for decision correction, with the decision of the Special Chamber dated 15.12.2014 and numbered 2014/15483 E., 2014/14359 K:
“…The plaintiff claimed that the previous shareholders, who are not the plaintiff, transferred their shares to the defendants through sale in the immovable property numbered 5 parcels in which the plaintiff is a shareholder, that no notification was made, that although the actual share sale value is 532.000,00 TL in total, it is shown high in the title deed in order to prevent the pre-emption right, and requested the registration of the shares registered in the name of the defendants over the actual value due to pre-emption.
The Defendants’ attorney defended the rejection of the lawsuit.
Court accepted the claim of collusion in the price and decided to accept the case by depositing a total amount of 594.076,00 TL, including the determined value of the sold part and the title deed expenses.
The judgement was appealed by the attorney of the defendants.
With the decision of our Chamber dated 24.06.2014 and numbered 2014/6863 Esas 2014/8456 Karar, “the appeal objections of the defendants’ attorney other than the scope of the following paragraph are rejected, but since the abstract witness statements alone are not sufficient to prove the claim of collusion in the price, the plaintiff’s claim of collusion should not be considered. In this case, the plaintiff should be given time to deposit the pre-emption price consisting of the sum of the sale price of the shares subject to the lawsuit and the mandatory fees and expenses to be paid, and a decision should be made according to the result”.
The plaintiff’s attorney requested correction of the decision.
1- According to the judgement, the collected evidence and the scope of the file, the objections of the plaintiff’s attorney for the correction of the decision other than the scope of the following sub-paragraph were not deemed appropriate and should be rejected.
2- However, the lawsuit is related to the request for cancellation and registration of the title deed based on the allegation of collusion in the price due to the right of pre-emption. Since the plaintiff’s claim of collusion in the price could not be proven, the pre-emption price consists of the sum of the sale price of 1.500.000,00 TL, which is the sum of the prices shown in the official deeds in accordance with Article 734/2 of the TMK,
and the sum of the fees and title deed expenses paid by the defendants, although the attorney for the defendants stated in his statement at the hearing dated 07.02.2013 and in his appeal petition dated 04.10. 2013 dated 04.10.2013 and in his petition of appeal dated 07.02.2013, the plaintiff should be asked whether he will deposit the sum of this price and the total of the title deed fees and expenses to be paid by the defendants for this price, and a decision should be made according to the result.
Since the decision should be reversed for this reason, but the reversal of the decision for a different reason is based on a material error, it was necessary to decide to revoke the judgement by accepting the request for correction of the decision….”
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 since a hearing cannot be held in the appellate examination of the decisions of resistance in accordance with the provision of paragraph 438/II of the Code of Civil Procedure No. 1086 amended by the Law No. 2494 as of the date of the decision of resistance, and after the documents in the file were read, the necessity was discussed:
The main and consolidated lawsuit is related to the request for cancellation and registration of title deed based on the right of pre-emption.
The plaintiff’s attorney, in the original and consolidated lawsuit, claimed that his client is a shareholder by deed in the immovable property numbered 334 block 5 parcel and is also the heir of Leman (Lamia) Öztürk, who was also a shareholder, that the sales prices were shown as unreal and extremely high during the share sales made by the previous shareholders to the defendants, and that no notification was made through notary public in accordance with Article 733 of the TMK.
Plaintiff claimed and sued for the cancellation of the title deed of the shares belonging to the defendants of the original and joint file and the cancellation of the title deed registration of the shares belonging to the original and joint file defendants in the immovable property and registration in the name of the plaintiff, provided that the real sales price and the total of 577.000TL, which is the sum of the real sales price and title deed expenses, are deposited.
The attorney for the defendants stated that the price shown in the title deed was the actual sale price and that the plaintiff, who was aware of the share sale, filed this lawsuit in order to purchase the immovable with a low price, and that he was not in good faith; and defended the dismissal of the original and the combined lawsuit separately.
Court stated that “the immovable property numbered 344 block 5 parcel is a protected cultural property, there is an exorbitant price difference between the share sales made between 27.04.2010 and 13.07.2010, the price difference in the share sales made in such a short period of time is contrary to the ordinary flow of life, some of the witnesses listened to determined the value of the entire immovable as 1. 150.000TL and that the purchase offers were made at this price, this issue was also confirmed by the bank records, therefore, the plaintiff’s claim of collusion in the price was proved”, it was decided to accept the main and combined cases by depositing 594.076TL as the sum of the sale price and title deed expenses.
Upon the appeal of the defendants’ attorney, the decision was rendered by the Special Chamber as follows: “rejecting the other appellate objections of the defendants’ attorney, the witnesses who were heard in terms of the plaintiff’s claim of collusion in the price did not have any information based on the witnesses, the witness statements were abstract statements contradicting the expert report, and no other evidence other than the witness statements was presented; since abstract witness statements alone are not sufficient to prove the allegation of collusion in the price, the plaintiff’s aforementioned claim cannot be relied upon; in this case, it is necessary to give the plaintiff time to deposit the pre-emption price consisting of the sum of the sale price of the shares subject to the lawsuit and the title deed expenses within a suitable time to be determined before the judgement and a decision should be made accordingly.”
Upon the request of the plaintiff’s attorney for correction of the judgement, the judgement was reversed by the Special Chamber for the reasons explained in the title section above.
The court decided to resist with the previous grounds and especially by emphasising that the witness statements confirming the plaintiff’s claim of collusion in the price were supported by the bank records and the fact that the real value of the immovable was not shown in the bill of sale was confirmed by the expert report.
Decision of resisting was appealed by the attorneys of the parties.
The dispute before the General Assembly of Civil Chambers by way of resisting; in the case at hand, the dispute centres on whether the plaintiff’s claim of collusion in the price has been proved.
1- Regarding the appeal of the attorneys of the defendants … and Nergis Ece Evrensel;
As it is known, it is important that the shareholders know and recognise each other, since there is a common management and usage situation between the shareholders in shared ownership. As a requirement of this need, in order to prevent the entry of a foreign person between the shareholders, to prevent the immovable property from being divided into smaller parts, and to ensure that the shares are collected in the hands of as few shareholders as possible, the right of assignment of the shareholders in shared immovable properties is limited and the legal pre-emption right is recognised.
The right of pre-emption is one of the legal restrictions of the ownership of immovable property, and in the Unification of Case Law Decision dated 26.12.1951 and numbered 1/6, it was stated that “as confirmed by the unified case law decision dated 16.05.1951 and numbered 19/6 main 3 decision, the right of pre-emption is a construction right”.
On the other hand, in the Unification of Case Law Decision dated 20.06.1951 and numbered 1949/13 Esas, 1951/5 Decision, the legal nature of the right of pre-emption is stated as follows: “The legal right of pre-emption, which is one of the encumbrances of real estate ownership, is a right in rem that authorises the person who owns a share in the real estate to purchase that share in the event that another share is sold to a third party, with the amount of what that share cost the customer and within a certain period of time.
This right is a constitutive right that gives rise to novelty to be exercised under certain conditions, such as the sale of the usufructuary share to the third party and its exercise within one month from the date of the sale, and it is used to create a new legal situation with the delivery of the unilateral declaration of will of the chief to the customer that he has exercised this right. By exercising this right, the chief becomes successor to the customer without the need to conclude a new contract”.
Article 732 of the Turkish Civil Code (TCC) No. 4721 regulates the legal (statutory) right of pre-emption as follows: “In the event that a shareholder in shared ownership sells his/her share in the immovable to a third party in whole or in part, the other shareholders may exercise the right of pre-emption”.
Although there is no clear definition of the right of pre-emption in the aforementioned regulation, considering that the basic principle is the freedom of ownership and the power of disposition, while limiting the right of assignment of the shareholder, this limitation is also limited and the right of pre-emption is foreseen only for sales contracts.
This point is also emphasised in the Unification of Case Law Decision dated 20.06.1951 and numbered 5/13, the content of which is explained above.
As it is clearly seen, in order to be able to speak of the right of pre-emption, the share in an immovable subject to the provisions of shared ownership must be sold to a third party; the subject of the right of pre-emption is the sale of shares.
With the exercise of the pre-emption right, a new legal situation arises between the shareholder who exercises this right and the buyer, the scope and terms of which are the same as the contract between the seller and the defendant.
The pre-emption price consists of the sum of the sale price shown in the title deed and the fees and expenses paid by the defendant. However, since the shareholder who files a pre-emption lawsuit is not a party to the sales contract, he may claim collusion in the price and prove this claim with any evidence, including witnesses.
In the concrete dispute; the plaintiff has claimed collusion in the price by claiming that the prices of the shares subject to the pre-emption right are actually 577.000,00TL in total, but the share prices are shown as exorbitantly high prices in order to prevent the pre-emption right. The plaintiff relied on witness statements, discovery and expert examination in order to prove the claim of collusion in price.
In the report dated 25.10.2011 prepared by the expert committee consisting of architects and civil engineers as a result of the discovery made by the court, it was reported that the entire immovable was 1.787.723,83TL; and the plaintiff witnesses who were heard stated that the entire immovable was 1.100. 000,00TL; afterwards, the court accepted that the total value of the immovable was 1.150.000,00TL and the value of the shares subject to the lawsuit was 593.752,00TL based on these witness statements, and 594.076,00TL, which was found by adding the title deed costs to this price, was deposited as the pre-emption price.
However, it is not correct for the court to make a decision based on the witness statements, which do not provide an eyewitness account of the share prices between the defendants and those who transferred shares to the defendants, and which contradict the expert report. Because, abstract witness statements are not sufficient to prove the plaintiff’s claim of collusion in the price. The plaintiff could not prove the claim of collusion in consideration. However, since the attorney for the defendants has requested a deposit decision in terms of the price determined by the expert committee report, it is clear that this statement should be taken into consideration.
In that case, it is against the procedure and the law for the court to resist the previous decision, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
2- Regarding the appeal of the defendant …;
As it is known; after the lawsuit is filed, if there is no limiting reason, the transfer of the property or right subject to the lawsuit to third parties is a requirement of the rule of freedom of disposition and a natural consequence of being a right holder or owner. In our Procedural Law, it has been accepted that the property or right subject to the lawsuit can be transferred during the continuation of the lawsuit, except in discrete cases, and Article 125 of the CCP No. 6100 regulates the procedural procedures to be carried out in case of transfer and assignment of the subject of the lawsuit to a third party by the parties.
The aforementioned article states
“(1) If the defendant transfers the subject matter of the lawsuit to a third party after the lawsuit is filed, the plaintiff may use one of the following authorisations:
a) If he/she wishes, he/she waives his/her lawsuit against the transferor party and continues the lawsuit against the person who has transferred the subject matter of the lawsuit. In this case, if the plaintiff wins the case, the transferor and the transferee shall be jointly and severally liable for the costs of the proceedings.
b) If he/she wishes, he/she may convert his/her lawsuit into a compensation lawsuit against the transferee…”.
As it can be understood from this regulation, the court should take into account the assignment of the subject of the lawsuit to the third party ex officio, and the plaintiff party should be given time to use its right of choice in accordance with Article 125 of the CCP No. 6100, which is an exception to the prohibition of changing the lawsuit or defence.
In the concrete case; it is understood that the present lawsuit was filed on 16.07.2010 for this share due to the defendant …’s purchase of the share subject to the lawsuit in the immovable property numbered 344 block 5 parcel from the previous shareholders out of the lawsuit, and during the trial, it is understood that the defendant transferred the share subject to the lawsuit to the third party Ahmet Yılmaz on 11.08.2016 during the appeal phase after the decision was made for cancellation and registration of the title deed.
With the petition dated 09.02.2018, the plaintiff requested a reversal decision in order to exercise his right of choice under Article 125 of the CCP. In this case, in line with the principles explained above, the court should remind the plaintiff of his/her right of choice in accordance with Article 125 of the CCP No. 6100 and decide accordingly.
As such, the decision of the local court to resist should be reversed for the defendant … with this different justification explained above.
CONCLUSION:
1- The appeal objections of the attorneys of the defendants … and Nergis Ece Evrensel are accepted and the decision of resistance is reversed for these defendants for the reasons explained in the Special Chamber reversal decision,
2-Acceptance of the appeal objections of the defendant …’s attorney, and the judgement shall be annulled for this defendant in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied according to the Provisional Article 3 of the Code of Civil Procedure No. 6100, with the different justification explained above,
3-According to the reasons for reversal, it was unanimously decided on 13.06.2019 that the appellate objections of the plaintiff’s attorney were not examined for the time being, and that the prepaid appeal fee should be returned to the depositors upon request, in accordance with Article 440 of the same Law, the way of decision correction will be open within fifteen days from the notification of the decision.
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