Preemption Right May Arise As The Condominium Ownership Is Terminated And The Share Ownership On The Land Share Continues
General Assembly of Civil Chambers 2018/559 E. , 2020/261 K.
“Case Law Text”
COURT :Civil Court of First Instance
1. At the end of the trial held due to the “cancellation and registration of title deed based on the right of pre-emption” lawsuit between the parties, the decision of the Istanbul Anatolian 13th Civil Court of First Instance regarding the deeming of the lawsuit as not filed in respect of some of the plaintiffs and the dismissal of the lawsuit in respect of the plaintiff … and the original interveners … and friends was reversed by the 14th Civil Chamber of the Court of Cassation upon the appeal of the plaintiff … and the original interveners … and friends, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the attorneys for the plaintiff … and the main interveners … et al.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed:
I. JUDICIAL PROCESS
Claimant Request:
4. The lawsuit has been filed by the plaintiffs … and its friends, and a request for primary intervention has been made by … and its friends.
4.1. In the statement of claim dated 14.10.2014, the attorney for the plaintiffs … et al. stated that 132,37m2 of the immovable property numbered 70 block 47 (former 16) parcel on plot 6/1 in Maltepe district of Istanbul province, which is the subject of the dispute, was expropriated and subdivided by the Ministry of Transport, General Directorate of Railways and Airports Construction (DHL) on behalf of the Marmaray Regional Directorate, the building on the land was demolished and the immovable property became a land without the need for a change of type, and with the undertaking dated 09.03. 2013 dated 09.03.2013, it was accepted that the shareholders would not file a lawsuit for the elimination of the partnership and that the shareholder who wanted to sell his share would first make an offer to the other shareholder,
the shareholder … first sold his share to Yasemin Keserli and Yasemin Keserli sold her share to the defendant …, claiming that due to the sale of shares without warning and notice, the 60/2000 share assigned on behalf of the defendant was sold for 80. 000.00TL sales price stated in the title deed of the 60/2000 shares assigned in the name of the defendant, and by accepting the pre-emption rights of his clients by paying this price and all legal attachments, he requested a decision to cancel the title deed registration in the name of the defendant and to register it equally in the name of his clients.
4.2. In his petition dated 30.04.2015, the attorney for … and its friends, who requested primary intervention, claimed that his clients are shareholders in the disputed immovable subject to the pre-emption case, that they have just learned about the sales transactions, that the title deed of the 60/2000 shares subject to the lawsuit based on the pre-emption right should be cancelled and registered in the name of his clients taking into account their shares in the immovable, and that the value of the lawsuit should be considered as 80.000TL, which is the sales price.
Defendant’s Reply:
5. In his reply petition dated 10.11.2014, the defendant’s attorney stated that the right of redemption cannot be used in accordance with Article 8 of the Law No. 634 since a condominium easement has been established on the immovable property subject to the dispute, and that his client’s good faith will be protected since he is the second buyer, and requested a decision to dismiss the lawsuit.
Court Decision
6. Istanbul Anatolian 13th Civil Court of First Instance dated 12.05.2015 and numbered 2014/416 E., 2015/222 K. dated 12.05.2015 and numbered 2014/416 E., 2015/222 K.; the case of the plaintiff … and the main interveners was dismissed since the immovable subject to the lawsuit is an immovable subject to condominium ownership, the ownership right of each independent section owner is individual even if the building is demolished in the condominium ownership immovable, and the right of pre-emption cannot be used in the immovable subject to condominium ownership, and the lawsuit filed against the plaintiffs … and … was dismissed on 17. 02.2015 and since it is understood that these plaintiffs did not renew their lawsuits in due time, it was decided that the lawsuit filed by these plaintiffs shall be deemed as not filed in accordance with Article 150 of the Code of Civil Procedure (CCP).
Special Chamber Reversal Decision:
7. The plaintiff … and the attorneys for the main interveners … et al. filed an appeal against the above-mentioned decision of the Istanbul Anatolian 13th Civil Court of First Instance within due time.
8. With the decision of the 14th Civil Chamber of the Court of Cassation dated 18.01.2016 and numbered 2015/14663 E., 2016/436 K. dated 18.01.2016 and numbered 2015/14663 E., 2016/436 K.; according to Article 47 of the Condominium Law No. 634 (CPC) According to Article 47 of the Condominium Law No. 634, if the entire main structure is ruined, the condominium ownership on the main real estate is automatically terminated, and in the concrete case; In the concrete case, the main immovable property on which condominium ownership is established is a masonry apartment building with a garden, 132.37 m2 of the immovable property subject to the lawsuit numbered 70 block 16 parcel was divided by expropriation and registered in the name of the Treasury, after the expropriation process,
the masonry apartment building on the immovable property subject to the lawsuit was demolished and the immovable property took a new parcel number and was registered as immovable property numbered 70 block 47 parcel, again in the form of a masonry apartment building with a garden, 63 m2 area, although the main immovable was completely demolished after the expropriation process, the condominium ownership continues in the new title deed record, but the condominium ownership automatically ended due to the complete destruction of the main structure on the immovable property numbered 70 block 47 parcel of land subject to the lawsuit,
in this respect, in case one of the shareholders in the immovable sells his share to a third party, the decision was reversed on the grounds that it was not correct to make a written decision without considering that the other shareholders can use their pre-emption rights in accordance with Article 732 of the Turkish Civil Code (TMK) numbered 4721. Article 732 of the Turkish Civil Code (TMK) numbered 4721, the decision was reversed on the grounds that it was not deemed correct to make a written decision without considering that the other shareholders can use their pre-emption rights.”
Resistence Decision:
9. Istanbul Anatolian 13th Civil Court of First Instance dated 04.05.2017 and numbered 2016/281 E., With the decision dated 04.05.2017 and numbered 2017/146 K.; According to the reply letter of Maltepe Land Registry Directorate dated 07.03.2017, the basement floor independent section numbered 2 with 60/2000 land share of the main immovable property in the form of a gardened masonry apartment building with an area of 638,63m², which is located in Küçükyalı Neighbourhood, Maltepe district, Istanbul province,
was sold to Yasemin Keserli on 19.07.2013 while it belonged to …, and by this person on 01. 10.2014 to the defendant …, there is no dispute between the parties that the main property with condominium ownership was demolished, but the condominium ownership still continues on the title deed records and the condominium ownership has not been cancelled, in this respect, it is not possible to use the right of pre-emption in accordance with the provisions of the Condominium Law.
Appeal of the Resistence Decision:
10. The decision of resisting was appealed by the attorneys of the plaintiff … and the main interveners … and friends.
II. DISPUTE
11. The dispute that came before the General Assembly of Civil Chambers by way of resistance; after the expropriation of a part of the disputed immovable property numbered 70 block 16 parcel of land, the immovable property received a new parcel number (70 block 47 parcel of land) and the title deed was registered as a gardened masonry apartment building, but whether the condominium ownership automatically terminated in the face of the demolition of the building on the main immovable property, and according to the result to be reached here,
whether it is possible for the plaintiff and the main interveners to exercise their pre-emption rights due to the sale of the basement floor 2 independent section of the immovable property with a land share of 60/2000 to the 3rd party. Whether it is possible for the plaintiff and the main interveners to use their pre-emption rights due to the sale of the basement floor 2 independent section with a land share of 60/2000 to a third party.
III. REASON
12. The right of pre-emption is a right that authorises other shareholders to purchase the share first in the event that the share is sold to a third party in immovables subject to the provisions of shared ownership. This right arises at the time of the establishment of the shared ownership relationship and becomes exercisable upon the sale of the share to the third party. Thus, it is aimed to prevent foreign persons from entering the immovable property as shareholders and dividing the immovable property into smaller parts.
Article 732 of the Turkish Civil Code (TCC) No. 4721 does not define the right of pre-emption, but regulates the conditions under which it may be exercised. Indeed, the said article reads as follows: “In the event that a shareholder sells his/her share in the immovable property to a third party in whole or in part, the other shareholders may exercise the right of pre-emption.”
13. In this context, the basic relationship required for the exercise of the legal right of pre-emption is the shared ownership relationship. Immediately here, since it is seen that the share requested to be cancelled in the 70 block 47 parcel subject to the dispute is registered as an independent section in the land registry records according to the provisions of the Condominium Law No. 634 (CPC), it is useful to focus on the establishment and termination of condominium ownership.
14. Condominium ownership is defined in Article 3 of the CPC as “a private ownership in connection with the land share and common places in the main real estate”, and Article 1 of the same Law states that independent property rights may be established by the owner or co-owners of the real estate on those parts of a completed building such as floors, flats, business offices, shops, stores, cellars, warehouses, which are suitable for separate and independent use, according to the provisions of this Law. The whole of the real estate subject to condominium ownership is defined as “main real estate”, only the main building part is defined as “main structure”, and the parts of the main real estate that are suitable for separate and independent use and are subject to independent ownership according to the provisions of this law are defined as “independent section” (Article 2/a of the CPC).
15. Condominium ownership can be established primarily in reinforced concrete (masonry) buildings. Buildings that are not completely masonry cannot be subject to condominium ownership (Article 50/son of the CPC). Likewise, condominium ownership cannot be established in structures built in violation of the Zoning Law. On the other hand, in order to establish condominium ownership, the building must be completed, and not condominium ownership, but condominium easement can be established on the building that is being constructed or will be constructed in the future (CPC Art. 1/2. sentence). Condominium ownership may be established by the will of the owner or owners of the immovable property, by court decision (Article 10 of the CPC) or on the basis of a condominium easement (Article 14/3 of the CPC).
16. The termination of condominium ownership is regulated in Articles 46 and 47 of the CPC. Condominium ownership terminates with the will of the condominium owners, with the destruction or expropriation of the main immovable together with its land or with the dilapidation of the main structure. The termination of the condominium ownership by the condominium owners voluntarily occurs by deletion of the registration in the registry (Article 46/1 of the CPC).
In the event of complete destruction of the main real estate together with its land or expropriation, the condominium ownership is also terminated, and the deletion of the registry record is made according to the general provisions (Article 46/5 of the CPC). Article 47/1 of the Law stipulates that the condominium ownership shall automatically terminate in the event that the entire main building is ruined. Dilapidation means “no longer in good repair, in a state of destruction, ruined, ruined” (Turkish Language Association Dictionary). In order for this provision to be applicable, the whole of the main structure must be ruined, and the condominium ownership does not automatically terminate in the event that a part of it is ruined (Article 47/2 of the CCC). In case the main building is completely ruined, the condominium ownership is terminated, but the shared ownership on the land share continues.
17. As for the examination of the concrete case in the light of the explanations made; while the immovable property numbered 70 block 16 parcel was registered in the title deed as a gardened masonry apartment building with a surface area of 771,00 m2 and converted into condominium ownership, the immovable property was subject to the decision of the Ministry of Transport DLH Marmaray Regional Directorate regarding the improvement of the Gebze-Haydarpaşa, Sirkeci-Halkalı suburban line and the construction of the railway Bosphorus tube passage (Marmaray project) dated 12. 5.2004 dated 12.12.2004 and numbered 25460 published in the Official Gazette dated 5.5.2004 and numbered 25460,
pursuant to the Decision No. 2004/7255 of the Council of Ministers, a decision for urgent expropriation was taken in accordance with Article 27 of the Law No. 2942 amended by Law No. 4650, and the decision of the (closed) Kartal 2nd Civil Court of First Instance dated 28.02.2012 and numbered 2009/54 E., 2012/94 K numbered decision of the (closed) Kartal 2nd Civil Court of First Instance dated 28.02.2012 and numbered 2009/54 E., 2012/94 K.,
it was decided to cancel the title deed registration of the 132.37 m2 portion shown with the letters A and B in the science expert report and to register it in the name of the Treasury, and after the expropriated portion was divided after the decision, the remaining portion was registered to the title deed on 09.04.2012 with the parcel number 70, block 47, with an area of 638.63 m2, in the form of a gardened masonry apartment building and with condominium ownership continuing.
18. From the file content, it is seen that after the expropriation of a part of the immovable property, the floor owners agreed that they would not file a lawsuit for the cancellation of the water well, that they would not sell their shares to anyone other than the shareholders and similar issues with the document titled “joint undertaking” dated 05.03.2013, and that the share subject to the claim of the plaintiffs was sold by the floor owner … to Yasemin Keserli on 19.07.2013, and by Yasemin Keserli, who bought it, to the defendant … on 01.10.2014. 2014 to the defendant …,
in the document titled “Attendance Slip” dated 18.07.2014 issued by the attendance officers of the Maltepe district Municipality (General Directorate of Accounts), it was understood that during the examination made at the address specified in accordance with the petition dated 18.07.2014 and numbered 668, it was recorded that the said parcel was found to be empty and that there was no structure on it, and that the main structure on the main immovable was all ruined.
19. Although it is seen that although the entire main building has been demolished, the records related to the independent sections continue in such a way that the condominium ownership continues, as stated above (15-16), considering that condominium ownership can be established on completed reinforced concrete structures and that the condominium ownership will automatically end if the main building is completely ruined, it is undoubted that the said records cannot be valued, and that the shared ownership on the land share will continue with the ruin of the main building.
20. In this respect, since it is understood that the condominium ownership on the immovable property numbered 70 block 47 parcel of land subject to the lawsuit has automatically terminated and the shared ownership on the land share continues, in case one of the shareholders in the immovable sells his share to a third party, it is necessary to make a decision according to the result by conducting research and examination in this direction, considering that other shareholders can use their pre-emption rights in accordance with Article 732 of the TMK numbered 4721.
21. As such; while the local court should comply with the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, resisting the previous decision is against the procedure and the law.
22. Therefore, the decision to resist should be reversed.
IV. CONCLUSION:
For the reasons explained;
The appellate objections of the plaintiff … and the attorneys for the main defendants … and their friends are accepted and the decision of resistance is reversed 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, for the reasons explained in the Special Chamber reversal decision,
In case of request, the advance appeal fee shall be returned to the depositors,
Pursuant to Article 440 of the same Law, it was unanimously decided on 05.03.2020, within fifteen days from the notification of the decision, the way of correction of the decision being open.
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