Preemption Case Decision
General Assembly of Civil Chambers 2013/1754 E. , 2015/1235 K.
RIGHT OF PRE-EMPTION
REQUEST FOR CANCELLATION AND REGISTRATION OF SHARE BASED ON PRE-EMPTION RIGHT
PLAINTIFF SELLS SHARES FROM HIS OWN SHARE
THE NEED FOR CONTINUED STAKEHOLDER ENGAGEMENT
ALLEGATION OF BREACH OF GOOD FAITH AND HONESTY
TURKISH CIVIL CODE (TMK) (4721) Article 2
“Case Law Text”
At the end of the trial held due to the “pre-emption” lawsuit between the parties; Upon the request of the plaintiff’s attorney for the examination of the decision dated 15.03.2012 and numbered 2011/127 E.-2012/124 K. given by the Sincan 4th Civil Court of First Instance on the rejection of the lawsuit, with the decision of the 6th Civil Chamber of the Court of Cassation dated 10.12.2012 and numbered 2012/8711 E. 2012/16311 K;
(…The lawsuit is related to the cancellation and registration of the share sold to the defendant due to the pre-emption right. The court decided to dismiss the lawsuit filed in bad faith, and the judgement was appealed by the plaintiff’s attorney.
Plaintiff’s attorney stated that the share of 41039/4031259 in the parcel no. 41039/4031259 in the E… district, Y… village, village no. . where the plaintiff is a shareholder, was sold by S. G. to the defendant R… E… was sold to the defendant R… E… for 10.000-TL, and by using the legal pre-emption right, he requested the cancellation of the sold share and its registration in the name of the plaintiff.
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The defendant attorney stated that the share subject to the lawsuit was sold for 103.000-TL including expenses, 100.000-TL of this price was paid to A. İ. D.’s Akbank branch account, 3.000-TL was sent to the attorney’s account, the sale price was not 10. 000-TL, the plaintiff and the person who made the sale are relatives, the plaintiff also sold some of his shares to third parties a short time ago, therefore, the plaintiff’s lawsuit is not in accordance with the rule of good faith as per Article 2 of the TMK and defended the dismissal of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that the plaintiff, on the one hand, filed a lawsuit for the sale of shares, and on the other hand, on the same day, he sold some of his shares to third parties who are not shareholders in the immovable property, the purpose of the pre-emption lawsuit is to prevent foreign persons from entering between the shareholders, in accordance with Article 2/2 of the TMK, the plaintiff clearly abused his right, the legal order will not protect this situation, and the plaintiff acted against the rule of good faith and honesty while using his right.
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The right of pre-emption is a right that gives the other shareholders the right to purchase the share in the event that the share is sold to a third party in immovables subject to the provisions of shared ownership. This right arises as soon as the shared ownership relationship is established and becomes exercisable upon the sale of the share to the third party.
Since the right of pre-emption is an innovative right arising from a valid sale in real terms, any sale of shares in the immovable property subject to shared ownership can be subject to a pre-emption case. The share of 41039/4031259 in the parcel no. 41039/4031259 in the parcel no. Y… village, E… district, Ankara province, in which the plaintiff is a shareholder, was sold by Su. G. sold to the defendant R.. E… for 10.000-TL. The plaintiff filed a pre-emption lawsuit on 26.08.2011 due to the sale of this share in the immovable property and requested the registration of the sold share in his name.
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The plaintiff S.. Y… sold and transferred some of the shares from the share registered in his name to third parties who are not shareholders on the same day, this does not show that the plaintiff is malicious. Since the plaintiff has been a shareholder in the defendant immovable property for a long time and his shareholding continued on the date the lawsuit was filed, there is no irregularity in the use of the pre-emption right. In this case, while the court should examine the merits of the case and make a decision according to the result, it was not deemed correct to make a judgement as written, and the decision should be reversed…)
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.
APPELLANT Plaintiff’s Counsel
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of resistance was appealed in due time and the papers in the file were read, the necessity was discussed:
The lawsuit is related to the cancellation of the share sold to the defendant based on the pre-emption right and the request for registration in the name of the plaintiff.
The plaintiff’s attorney stated that the defendant purchased the share of 41039/4031250 in the immovable registered in parcel 517 in the village of Y…, E…district of Ankara, where the plaintiff is a shareholder, on 23/08/2011 for 10.000,00 TL from S.. G… from the shareholder named S…G… on 23/08/2011 for 10.000,00 TL and requested the cancellation of the title deed in the name of the defendant and its registration in the name of the plaintiff
The defendant defended the dismissal of the lawsuit.
The court’s decision on dismissal of the lawsuit was reversed by the Special Chamber on the grounds written above; and the Local Court resisted the previous decision.
Dispute that came before the General Assembly of Civil Chambers by way of resisting; whether it is against the rules of honesty for the plaintiff who wants to use his pre-emption right to sell shares from his own share, and whether this situation prevents him from using his pre-emption right.
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The defendant’s attorney, with the reply petition dated 08.07.2014, stated that the 517 parcel subject to the lawsuit constituted 48381 block 1 parcel and 48417 block 2 parcel with the zoning, that the plaintiff has no share in the new parcels, therefore the right of pre-emption is no longer subject to the right of pre-emption, and submitted title deed records in this regard.
As it is known, the right of pre-emption exists as long as the joint ownership relationship continues. It is obligatory for the plaintiff to maintain his shareholding during the continuation of the proceedings. If the plaintiff loses his share in any way after the filing of the lawsuit, it is not possible to use the right of pre-emption since the plaintiff’s shareholding cannot be mentioned.
In the concrete dispute, the work to be done by the local court should be to subpoena and examine the title deed records, which the defendant’s attorney put forward in his reply to the plaintiff’s appeal of the decision of resistance, together with all its bases, to investigate the shareholding status of the parties and to make a decision according to the result.
The resisting decision should be reversed with this different reasoning.
CONCLUSION :
With the acceptance of the appeal objections of the plaintiff’s attorney, it was unanimously decided on 17.04.2015 that the resisting decision should be reversed for the different grounds and reasons shown above, and that the pre-appeal fee should be returned to the depositor, if requested.
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