Right Of Preemption Cannot Be Exercised Even In Transfers Made To A Relative Whose Sale Is Shown In The Title Deed
14th Civil Chamber 2016/11407 E. , 2019/8453 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the hearing held on the request for cancellation and registration of the title deed arising from the right of pre-emption with the petition filed by the plaintiffs’ attorney against the defendants on 04.09.2013; the Court of Cassation examination of the judgement dated 15.12.2015, which was given that there was no need for a decision, was requested by the plaintiffs’ attorney, and after the acceptance of the petition of appeal, which was understood to be in due time, the file and all the papers in it were examined and considered accordingly:
DECISION
The lawsuit is related to the request for cancellation and registration of title deed arising from the right of pre-emption.
The plaintiffs’ attorney stated that his client was a shareholder in the immovable property numbered 209 block 5 parcel in … province, … district, … district, Taşbaşı neighbourhood, 209 block 5 parcel, 125/2599 shares of the immovable were sold to the defendants … and 125/2599 shares were sold to the defendants … and requested the cancellation and registration of the title deed arising from the right of pre-emption.
Defendant attorney defended the dismissal of the lawsuit by declaring that the statute of limitations has expired and that there is a de facto division on the immovable.
The court decided that there is no need to decide on the merits of the case.
The judgement was appealed by the plaintiffs’ counsel.
Article 732 of the Turkish Civil Code No. 4721 titled “Legal Preemption Right – Preemption Right Holder” stipulates that “In the event that a shareholder sells his share in the immovable property to a third party in whole or in part, the other shareholders may use the right of pre-emption”.
In the aforementioned regulation, although there is no clear definition of the right of pre-emption, and the basic principle is the freedom of ownership and the authority to dispose, the right of assignment of the shareholder is restricted in preemption, but this restriction is limited and it is stipulated that the right of pre-emption can only be used for sales contracts.
The right of preemption shall not arise in share assignments that are not the subject of a real sale and are not in the nature of a sale. Since the right of pre-emption must be exercised within the conditions of the sale of the share, it is not possible to acquire the share from those who acquired the share with a consideration other than money, by fulfilling the same conditions.
In the event that the share purchaser argues that the assignment transaction is actually a grant, although it is shown as a sale, in other words, in cases where it is claimed that the grant and the assignment are intended, it is clear that the claim of collusion will not be heard, since the defendant who assigns the share is a party to the collusive official transaction and no one can rely on his own collusion.
In addition, if the shareholder assigns the share to the husband and wife, children or relatives, even if a sales contract is made in appearance, it is stated in the Supreme Court of Appeals Unification of Case Law Decision dated 27.03.1957 and numbered 1956/12 Main, 1957/2 Decision that the right of pre-emption will not be used in cases where the purposes related to the inheritance law or thoughts such as donation are dominant.
İn the explanatory justification part of the aforementioned decision; “It is necessary to consider whether or not the right of pre-emption will be exercised in the event of a sale to one’s own children or relatives in accordance with the rules pertaining to inheritance law or with other considerations. In such sales to relatives, even if the price, which is an element of the contract of sale, is mentioned, it is not possible to accept it as a mere sale. Because the intention of the trustee here is not to receive the price of the property, but perhaps to take possession of it and replace it due to the relationship of kinship.”
As can be seen, both the binding conclusion and the explanatory reasoning of the decision carefully avoid the use of the term “heir” alone, which expresses a special legal status, and the broader concept of “relative” is also included. In this case, it is not possible to accept that the decision only covers the persons who are direct heirs as of the date of sale.
İn the light of the explanations made above, it is seen that the Unification of Case Law Decision dated 20.03.1957 and numbered 1956/12 Main, 1957/2 Decision is an exception to the rule that the person who is a party to the contract cannot claim collusion in the transaction and cannot prove it with any evidence. In order for the aforementioned decision to be applicable, firstly, the sale does not have to be made directly between the heirs as of the date of sale, and it is sufficient that the parties to the assignment are relatives.
If the assignment is made in the form of a sale between relatives, this time, the issue of whether there is a “purpose related to the law of grant or inheritance” sought by the Unification Decision, in other words, in every assignment between relatives, according to the nature of the concrete dispute, it should be sought to prove whether the assignment is made for the purposes related to the law of grant or inheritance, and it should be considered that it is not possible to use the right of pre-emption with the assignment in case of proof.
In the decisions of the General Assembly of Civil Chambers of the Court of Cassation dated 08/02/2012 and numbered 2011/6-762 Esas, 2012/56, dated 27/04/2011 and numbered 2011/6-38 Esas, 2011/225 Decision, 2011/6-164 Esas and 2011/245, it was decided that the sale of shares does not have to be made directly between the heirs as of the date of sale, and it is sufficient for the parties of the assignment to be related.
As for the concrete case; since there is a first-degree close kinship relationship between the defendants who sold shares to the defendants … and the defendants against whom the deed cancellation and registration lawsuit arising from the right of preemption was filed, 20.03. 1957 dated 20.03.1957, 1956/12 Main, 1957/2 Decision numbered Supreme Court of Appeals Unification of Jurisprudence Decision, although the transaction was shown as a sale in the title deed, the transfer actually made should be accepted as a donation and it should be decided to dismiss the lawsuit, but it was not deemed correct to rule that there was no room for a decision due to the fact that the lawsuit was not subject to the written justification, and for this reason, it was decided to revoke the judgement.
CONCLUSION:
For the reasons explained above, it was unanimously decided on 09.12.2019, with the acceptance of the appeal objections of the plaintiffs’ attorneys and the judgement to be reversed, the prepaid fee to be returned to the depositor upon request, and the way of decision correction to be open within 15 days from the notification of the decision.
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