Landowner Cannot Be Forced To Take Delivery Of Incomplete And Defective Construction
23rd Civil Chamber
Principal Number: 2019/1917
Decision Number: 2019/513
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial of the cancellation of the objection case between the parties, the file was examined, the judgement given for the rejection of the case for the reasons written in the judgement was examined, the file was examined, the necessity was discussed and considered.
– DECISION –
The attorney for the plaintiffs claimed that a construction contract in return for land share was signed on 19.03.2010 between his client’s murisi… and the defendant contractor, that the defendant did not deliver the flats in accordance with Article 17 of the contract, that the proceeding initiated against the defendant for the rent compensation and delay increase receivable based on the contract was unjustly objected, and demanded and sued for the cancellation of the objection and the collection of the …-incurrence compensation from the defendant.
Defendant’s attorney defended that the plaintiffs did not respond to the invitation even though his client completed the construction and invited them for delivery, that the other owners did not have any objections regarding the deficiency and defect, that the building has started to be occupied and that there are even tenants in some apartments and requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that according to the claim, defence and the entire file scope; it should be accepted that the landowners delivered the land on 18.08.2010 as suitable for construction, and the construction completion period was 18.09.2011 for this reason, and that the landowner had no justifiable reason for refraining from delivery due to deficiencies, and therefore, the landowner could request the rental fees until December 2011, and that they could not request for January 2012 and later.
The decision was appealed by the attorneys of the parties.
1-According to the writings in the file, the evidence on which the decision is based, the reasons for the decision, and the appreciation of the evidence, all the appellate objections of the defendant’s attorney are not deemed appropriate.
2-According to the construction contract in return for land share, the contractor is required to realise a performance in accordance with the zoning, project and contract on the agreed date. The land owner cannot be forced to take delivery of a construction with incomplete and defective manufacturing.
In the concrete case, according to the reply notice dated 23.01.2012, the landowner is right not to take delivery of the independent section due to the alleged deficiencies. Since these deficiencies were eliminated later by the contractor and a new notice was not drawn for delivery, it was not correct to decide to dismiss the case with an erroneous reasoning, while the court should determine the delay period and award the rental fee.
CONCLUSION:
For the reasons explained in subparagraph (1) above, all the appellate objections of the defendant’s attorney are rejected, for the reasons explained in subparagraph (2) above, the appellate objections of the plaintiffs’ attorney are accepted and the judgement is DISMISSED in favour of the plaintiffs, the prepaid fee received from the plaintiffs shall be refunded upon request, the following fee shall be collected from the defendant, the way of decision correction shall be open for the plaintiffs and the way of decision correction shall be closed for the defendant within 15 days from the notification of the decision.
On 18.02.2019, it was unanimously decided.
You can access our other article examples and petition examples by clicking here.