Real Estate Acquired Through Donation Being Personal Property And Not Subject To Liquidation
T.C COURT OF CASSATION
8th Civil Chamber
Case No: 2015/7405
Decision No: 2017/369
Date of Decision: 17.01.2017
PROPERTY REGIME LIQUIDATION CASE – ACQUISITION OF REAL PROPERTY IN THE FORM OF A DONATION
PROPERTY ACQUIRED BY DONATION –
THE DEFENDANT’S PERSONAL PROPERTY AND NOT SUBJECT TO LIQUIDATION –
ACCEPTANCE OF THE PLAINTIFF’S CLAIM AND THE INAPPROPRIATENESS OF THE DECISION
IS UNJUSTIFIED – THE JUDGMENT IS SET ASIDE
SUMMARY: The court failed to consider that the real estate property with office characteristics, acquired through donation,
constitutes the defendant’s personal property and cannot be included in the liquidation, and
was accepted and a decision was rendered, which is contrary to procedure and law and warrants reversal.
(Turkish Civil Code No. 6098, Article 285)
Case and Decision: Following the trial in the case between the parties as described above,
the court partially accepted and partially rejected the claim, and the defendant’s counsel
, the Court reviewed the file and considered the matter.
The plaintiff’s attorney stated that his client served as a non-commissioned officer, while the defendant was a housewife who did not work,
and that there was one residence, one office, and money in a bank account purchased with funds paid by the plaintiff and registered in the defendant’s name
during the marriage, and requested the liquidation of the property
the division of the marital property, while reserving the right to claim additional amounts, including the contribution share, participation claim, and value
increase share, along with interest. The value basis for the fee was reported as 5,000.00 TL.
In the statement of claim dated March 18, 2014, the plaintiff’s attorney specified the claim amounts as follows: 500.00 TL for the residence,
3,000.00 TL for the office, 750.00 TL for the … funds, and 750.00 TL for the funds in Bank Asya.
With the amended petition dated February 17, 2015, in which they paid the required court fees, they increased the claim amounts to 60,500.00 TL for the house
60,500.00 TL for the house and 17,000.00 TL for the office.
The defendant’s attorney stated that the house in question was purchased with the proceeds from the sale of jewelry given at the wedding and with the financial assistance of the defendant’s father,
that the office was transferred to the defendant’s daughter by her father, and that
the proceeds from the sale of the office were used for the renovation of the house in question, the necessary expenses of the joint children, and their education
expenses, and that the plaintiff made no contribution to the acquisition of the property, thereby defending the dismissal of the case.
The court partially accepted the case, ruling that the contribution share claim for the residential property is 60,500.00 TL, the contribution share claim for the office
17,000.00 TL participation claim for the office, and 47.47 TL participation claim for the bank accounts,
along with legal interest accruing from the date of the decision, to be collected from the defendant and paid to the plaintiff, and the remaining
claim to be dismissed. The decision was appealed by the defendant’s attorney within the prescribed time limit.
1- The court has reviewed the contents of the file, the case documents, the trial minutes, and the existing evidence,
and has rendered its decision. Since there is no error in the court’s discretion, the defendant’s
counsel’s other appeals outside the scope of the following paragraph are deemed unfounded.
2- Regarding the defendant’s counsel’s appeals related to the office:
A gift is regulated under Articles 285 et seq. of the Turkish Civil Code No. 6098. According to Article 285,
a gift (donation) is defined as the gratuitous transfer of property from the donor to the donee with the intention of creating inter vivos effects. In doctrine,
to enrich the donee by transferring certain assets from their estate to the donee.
(Aydoğdu, Murat/Kahveci Nalan: Turkish Law of Obligations
Special Relationships, Izmir 2013, p. 344, Yavuz, Cevdet: Turkish Law of Obligations Special Provisions, 6th ed., Istanbul
2002, p. 222).
Depending on the characteristics of each specific case, the intention to donate may be expressed explicitly or implicitly.
For this reason, some transfers, although similar to donations, are not classified as donations because they are not made solely for the purpose of donation.
For a transfer that imposes a heavy burden on the transferor to be classified as a donation, the behavior and intention to donate must be unambiguous.
According to the established practice of the Court of Cassation and the Chamber, when it comes to property inherited from one of the spouses’ parents,
intention must be unambiguous.
According to the established practices of the Court of Cassation and the Chamber, when property comes from the parents of one of the spouses,
even if it is presented as a sale, the property is considered a donation. This
dispositive act is accepted as a donation as a factual presumption in accordance with the normal course of life. The party subject to the burden of proof
, i.e., that the property was actually purchased by paying its value, must prove their claim.
This accepted presumption shifts the burden of proof to the party making the claim. The spouse who claims that the disposal of property received from the mother or
the father, must prove their claim with strong and convincing evidence,
including payment records showing that the sale price was paid.
Regarding the specific dispute; the parties married on May 16, 1995, and divorced on September 17, 2012,
and finalized on February 20, 2014.
The real estate in question, registered as office number 7, was registered in the name of the defendant’s father, who is not a party to the case,
, was transferred to the defendant’s name through sale on September 3, 2007, during the marriage, and on August 3, 2012,
it was transferred to a third party outside the lawsuit through sale.
If the court accepts the office as the defendant’s acquired property and rules in favor of the plaintiff’s claim,
the reasoning does not align with the scope of the file. The transfer from the father to the defendant, as explained above,
must be considered a gift. The burden of proof to refute this presumption
lies with the plaintiff. Although the plaintiff claims that the office was purchased from the defendant’s father with payment,
, it is understood that the authenticity of the sale transaction could not be proven from the file contents.
The court, without considering that the office-type immovable property was acquired as a gift and therefore constitutes the defendant’s
personal property and cannot be included in the liquidation, ruled in favor of the plaintiff’s claim for payment
was accepted and a written decision was made, which is contrary to procedure and law, necessitating reversal.
Result: The defendant’s counsel’s written appeal objections, as stated in paragraph (2) above, are deemed valid, and the decision is reversed in accordance with Article 3 of the Transitional Provisions of the Civil Procedure Code No. 6100
and Article 428 of the Code of Civil Procedure, and the other appeals are rejected for the reason stated in paragraph (1) above.
Pursuant to Article 366/3 of the Enforcement and Bankruptcy Code, the parties may request a correction of the decision within 10 days of the notification of the Court of Cassation’s decision, and
the advance fee may be refunded upon request. This decision was made unanimously on January 17, 2017.