Joint Ownership – Court Of Cassation Decision On Land Registry Annotation
SUPREME COURT DECISION
Supreme Court Decision
COURT: Giresun 2nd Civil Court of First Instance
DATE: 03/10/2012
NUMBER: 2012/342-2012/367
The decision of the Giresun 2nd Civil Court of First Instance dated 03.10.2012 and numbered 342/367, regarding the dismissal of the property (determination request) case between H.. O.. and S.. O.. and B.. O.., was reviewed by the Supreme Court of Appeals
Civil Court of First Instance regarding the dismissal of the property ownership (determination request) case between H.. O.., S.. O.., and B.. O.., dated 03.10.2012 and numbered 342/367, was requested by the plaintiff within the prescribed time limit; the file was reviewed, and the necessary considerations were made:
DECISION
The plaintiff stated in the complaint that he is a co-owner of 2/4 of parcel no. 6 in plot no. 102, that the other co-owners are the defendants, that the second floor of the two-story house on the aforementioned parcel was constructed by him and belongs to him, furthermore, that the ownership of the approximately 130 cm wide and 5 meters high reinforced concrete chimney with a high flue located next to the house, as well as the 10 m² portion of the single-story wood shed constructed with concrete slabs next to the house, also belongs to him. He requested a decision confirming that these structures on the property belong to him and that a note be made in the land registry.
The defendants argued for the dismissal of the case.
The court ruled that “…although the parties requested the determination of ownership of a specific independent section on the jointly owned property and the registration of a note in the land registry, Articles 1008 and 1009 of the Turkish Civil Code clearly state which real and personal rights may be registered and noted in the land registry, therefore, there is no possibility of registering a note for the independent sections. Considering the facts and requests of the case, it is necessary to establish condominium ownership or condominium easement for the independent sections, which is regulated in Article 10 of the Condominium Ownership Law No. 634. The court ruled to dismiss the case, and the plaintiff appealed the decision.
The case concerns the determination of ownership of improvements on real property subject to joint ownership.
Although the court decided to dismiss the case with a written justification, it is not possible to agree with the court’s view. According to the land registry record of parcel no. 6 in block 102 in the file,
one-quarter shares belong to the defendants, and two-quarters belong to the plaintiff, and there is no statement or annotation on the property other than a two-story brick house and its land, The plaintiff has requested a decision determining that the second floor of the house on the property subject to shared ownership, the high-chimney fireplace, and the single-story 10 m² wood shed are his property. There is no doubt that the plaintiff has a legal interest in bringing this case. Article 10 of Law No. 634 does not apply in this matter.
Therefore, the Court’s task is to collect the evidence of the parties in accordance with the claims and defenses, and to clarify whether the structures in question, which are the subject of the determination of ownership, were actually constructed by the plaintiff
and whether they belong to him, summoning local experts and witnesses to the site of the inspection in accordance with Articles 243 and 244 of the Turkish Civil Code,
and, since the dispute concerns the improvements, they should be heard at the site of the inspection. If there are contradictions between the statements, local experts and witnesses should be confronted in accordance with Article 261 of the Code of Civil Procedure to resolve the contradictions. The technical expert should be asked to show the improvements on the immovable property,
and a report and sketch should be obtained.
Separately, Articles 1008 and following of the Turkish Civil Code specify which rights shall be recorded in the land registry, and Article 1012 specifies which rights shall be indicated in the declarations section of the land registry.
As a general rule, in cases filed in Cadastral Courts, the structures on the immovable property may be indicated in the declarations section or the annotations section of the land registry in accordance with Article 19 of the Cadastral Law No. 3402. However, this provision applies only to cases filed in Cadastral Courts. Among the general provisions of the same Law, Articles 14, 15, 17, 18, 20, and 21, which are of a general nature and should also be applied in general courts, do not include Article 19. The application of the aforementioned Article 19 in general courts is not deemed feasible.
Even if the improvements in question were made before the cadastral survey, the 10-year statute of limitations provided for in Article 12/3 of the Cadastral Law No. 3402 has not yet expired as of the date of finalization of the cadastral record for parcel No. 6 of plot No. 102 on April 30, 2010.
Therefore, this case may be heard even if the reason predates the cadastral survey. Regarding the sufficiency of recording the improvements on the immovable property in the declarations section of the land registry,
The decision of the Supreme Court of Appeals dated May 7, 1986, with case number 1985/1-281 and decision number 1986/490, is instructive in this regard. According to the aforementioned HGK decision, “..although it is not possible to make a note in the land registry
regarding the ownership of the house, it is necessary to decide to record it in the declarations section..” In the same vein, the 8th Civil Chamber’s decision dated 26.06.2012 and numbered 2012/63, published in the December 2012 issue of YKD, states that..
Therefore, it is possible to hear this case even if the reason predates the cadastre. The decision of the Supreme Court of Appeals dated May 7, 1986, with case number 1985/1-281 and decision number 1986/490, is indicative in this regard, stating that it is sufficient to record the improvements on the immovable property in the declarations section of the land registry.
According to the aforementioned decision of the Supreme Court of Appeals, “..if it is not possible to make a note in the land registry that the property belongs to the owner, it is necessary to decide that it should be recorded in the declarations section.” The same applies to the declarations section. According to the aforementioned HGK decision, “..although it is not possible to make a note in the land registry
regarding the ownership of the house, it is necessary to decide to record it in the declarations section..” The decision of the 8th Civil Chamber dated 26.06.2012
and Case No. 2012/6360, Decision No. 2012/6512, also serves as a guiding principle in this regard. In light of these concrete and legal facts, while the parties’ evidence should have been collected and a decision made regarding the request, either positive or negative, the decision to dismiss the case based on a rationale inconsistent with the case file is incorrect.
The plaintiff’s appeals are therefore well-founded, and the decision should be upheld in accordance with Article 305 of the Turkish Code of Civil Procedure (TCCP)
The plaintiff’s appeals are therefore well-founded, and the decision is hereby overturned in accordance with Article 428 of the Turkish Code of Civil Procedure (HUMK) No. 1086, as referred to in Article 3 of the Transitional Provisions of the Turkish Code of Civil Procedure (HMK) No. 6100. The parties are hereby notified of the decision of the Court of Cassation in accordance with Article 388/4 of the HUMK (HMK Art. 297/ç) and Article 440/I of the HUMK, the parties may request a correction of the judgment within 15 days of the notification of the judgment of the Court of Cassation
that an application for correction of the decision may be made within 15 days from the date of notification of the decision, and that the advance fee of 24.30 TL shall be refunded to the appellant upon request. The decision was made unanimously on January 24, 2014.