Subject To The Right Of Preemption Of The Transfer To The Contractor Pursuant To The Flat-for-floor Construction Contract
General Assembly of Civil Chambers 2014/324 E. , 2015/2787 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held due to the “pre-emption” lawsuit between the parties; Upon the request of the plaintiff’s attorney and the attorneys of the main defendants for the examination of the decision dated 10.04.2012 and numbered 2010/167 E., 2012/170 K., which was given by the Istanbul Anatolian 21st Civil Court of First Instance regarding the dismissal of the lawsuit, with the decision of the 6th Civil Chamber of the Court of Cassation dated 20.11.2012 and numbered 2012/11962 E., 2012/15095 K;
(…The lawsuit is related to the cancellation of the share subject to the pre-emption right and its registration in the name of the plaintiff. Upon the court’s decision to dismiss the lawsuit, the judgement was appealed by the plaintiff’s attorney and the interveners’ attorney.
The plaintiff’s attorney, in the petition of lawsuit, stated that FC Yapı Endüstri ve Dış Ticaret Ltd. Şti, one of the shareholders of the parcel numbered 21, of which his client is a shareholder, sold its share to the defendant on 30.3.2010 for 9.000 TL, the sale of the share was not notified to the plaintiff, the plaintiff, who was informed about the sale on 8.4.2010, stated that he wanted to use his right of pre-emption and requested the cancellation of the share registered in the name of the defendant and its registration in the name of his client.
The defendant’s attorney stated that the lawsuit was filed unfairly and baselessly, that after the transition to shared ownership in the immovable, the shareholders aimed to make use of the immovable by giving the immovable to the contractor in the form of construction in return for flats, that for this purpose, they initially agreed with the contractor Süleyman Güzel and GMO Yapı Grup Ltd Şti and after starting some activities on the immovable, they terminated the contract they made due to the contractor’s failure to fulfil their obligations and this time they agreed with the Dia Finans-FC Yapı and Timur Gayrimenkul ordinary partnership, including the defendant company,
However, the plaintiff and some of the shareholders did not participate in this agreement, in the meantime, in terms of the formation of the ordinary partnership of the contractor companies, the necessity to assign some shares in return for flats arose, these assignments could only be achieved through sale in the title deed, the share subject to the lawsuit was transferred to the defendant in this way, stating that the plaintiff did not have the right of pre-emption since this transfer was not a real sale, and defended the decision to dismiss the lawsuit filed in bad faith.
The right of pre-emption is a right that authorises the other shareholders to purchase this sold share in the event that a shareholder sells his/her share on the immovable immovable partially or completely to a third party in immovable properties 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.
The pre-emption right is exercised against the buyer only by filing a lawsuit. Article 733/3 of the Turkish Civil Code obliges the buyer or seller to notify the other shareholders of the sale through a notary public.
The right of pre-emption shall lapse three months from the date of notification of the sale to the right holder and in any case two years from the date of sale. This period is a forfeiture period and should be taken into consideration by the court automatically.
As for our case; the plaintiff claimed that FC Yapı Endüstri ve Dış Ticaret Ltd. Şti., one of the shareholders of the parcel numbered 21, to which the share subject to the lawsuit is related, sold its share to the defendant on 30.3.2010 and that it became aware of the sale on 8.4.2010 and requested the recognition of the right of pre-emption with this lawsuit filed on 9.4.2010. The defendant, on the other hand, defends that the assignment made in the title deed is not a real sale, and that it was transferred as a requirement of the construction contracts in return for flats and the ordinary partnership between the contractor companies.
According to the documents in the file, initially on 6.8.1998, some of the shareholders, including the plaintiff, signed an immovable sale promise and construction in return for flat contract with the contractor Süleyman Güzel, and since some other shareholders signed a contract with GMO Yapı Grup Ltd Şti on the same subject, on 2.3.2006, the contractor Süleyman Güzel transferred his rights and obligations arising from the contract to GMO Yapı Grup Ltd Şti. Since some procedures such as demolition of the structures on the immovable property and type correction were required to be carried out in order to start construction, the landowners terminated the construction contract on 14.7.2009 upon the failure of the contractor company to fulfil its obligations, and subsequently, on 15.7.2009, they concluded a sales promise and construction in return for flat contract with the non-suit FC Yapı Endüstri Ltd Şti.
However, eight shareholders, including the plaintiff, did not participate in this contract. The company undertaking the construction is an ordinary company with the defendant company and Timur Real Estate Partnership. As 1/3 of the shares transferred to the contractor pursuant to the protocol dated 8.3.2010 between them will be transferred to other partner companies, FC Yapı Endüstri Ltd Şti sold the share to the defendant company. This assignment was realised in the form of share sale in the title deed.
Although the previous developments regarding the immovable property and finally the sales promise and the construction contract in return for flats, which the plaintiff did not participate in, are in line with the defendant’s defences, there is no irregularity in the plaintiff, who is outside the construction contract in return for flats and the ordinary partnership agreement between the contractor companies, using the legal pre-emption right against the assignment made by the sale of shares in the title deed as a shareholder.
In this case, the work to be done by the court consists of examining the merits of the dispute and making a decision according to the result, and it is not correct to make a written judgement without considering this aspect.
The judgement should therefore 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.
APPELLANTS : Plaintiff’s attorney and the interveners’ attorneys
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 request for cancellation and registration of title deed based on the right of pre-emption.
The plaintiff’s attorney stated that his client has 731/11200 shares on the immovable property numbered 838 block, parcel 21, and that FC Yapı Endüstri ve Dış Ticaret Ltd. Şti, one of the shareholders of the same immovable, sold its 595/392000 shares to the defendant on 30/03/2010 for 9. 000 TL to the defendant on 30/03/2010, the sale was not notified to him, his client learned about the sale on 08/04/2010, his client is ready to pay the sale price and the buyer’s expenses in return for the right of pre-emption, and requested and sued for the cancellation of the share transferred by sale in the name of the defendant and registration in the name of his client.
The attorney for the main interveners stated that their clients are also the owners of the immovable property subject to the lawsuit, that there is no official notification made to their clients through a notary public regarding the sale subject to the pre-emption lawsuit, and that the sale transaction subject to the pre-emption lawsuit is in the nature of assignment for flat, However, stating that his clients should participate in the case as the main intervener due to the possibility that the court may decide that the right of pre-emption has arisen, he requested the acceptance of his clients’ request to participate in the case as the main intervener and the registration decision in proportion to the shares of his clients in case of a pre-emption decision.
Defendant’s attorney stated that the owners of the immovable property subject to the lawsuit signed a construction contract in return for flats with the Consortium (Dia Finans-FC Yapı-Timur Gayrimenkul Ordinary Partnership), in which his client is also included, and that the transfer of the shares subject to the lawsuit was made due to the construction contract in return for flats, that the real purpose of this transfer was not a sale, that for these reasons, it is not possible for the plaintiff to use the legal pre-emption right, and that in order to use the pre-emption right, there must be a real sale, and requested a decision to dismiss the lawsuit.
The court stated that the right of pre-emption can be used in real sales, in the transfers made with the construction contract in return for flats, since the sale is realised with the construction obligation, it does not qualify as a real sale, the right of pre-emption cannot be used in transfers made in this way, and although the plaintiff is in a position to use the right of pre-emption since he is not a party to this contract, the construction contract is not valid and enforceable since it is not made with all owners,
Court decided to dismiss the lawsuit on the grounds that the owners who transferred their rights by making a contract have the right to request their shares back upon the termination of the contract, and since these contracts were also known by the plaintiff, the use of the pre-emption right would not be incompatible with good faith.
The decision, which was appealed by the plaintiff’s attorney and the attorneys of the main defendants, was reversed by the Special Chamber on the grounds written above. Local Court decided to resist with the previous grounds.
The decision of reversal was appealed by the plaintiff’s attorney and the attorney for the main defendants.
I-In the examination of the appeal objections of the attorney for the main defendants;
During the discussion held at the General Assembly of Civil Chambers, before proceeding to the examination of the merits of the case, the preliminary issue of whether it is possible for the attorney for the main defendants to appeal the decision through participation and whether the appeal request of the attorney for the main defendants is within the time limit according to the conclusion to be reached here were addressed as preliminary issues.
It should be noted immediately that, pursuant to Article 433/II-2 of the Code of Civil Procedure (CPC) No. 1086, which is being applied with the reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100 by Article 30 of the Law No. 6217. Pursuant to Article 433/II-2 of the Code of Civil Procedure No. 1086 (HUMK), even if the opposing (appealed against) party (respondent) has not appealed the judgement in due time, he/she may also request an appeal by stating his/her objections to the judgement in the reply petition to be submitted within ten days (from the notification of the appeal petition to him/her); in other words, he/she may appeal the judgement (Art. 433, II c. 2). This is called appeal by participation.
Accordingly, there should be no doubt that the concept of “opposing party” mentioned in Article 433/II-2 of the aforementioned Code shall include the “defendant” if the plaintiff requests an appeal, and the “plaintiff” if the defendant requests an appeal.
On the other hand, pursuant to paragraph 1 of Article 432 of the abrogated Code of Civil Procedure No. 1086, the appeal period for the decisions of the Civil Court of First Instance is 15 days from the date of notification.
In the concrete case, the local court’s decision to resist was notified to the attorney for the main defendants on 16.01.2014 and the legal 15-day period expired on 31.01.2014. Later on, upon the request for appeal by the plaintiff’s attorney, the petition requesting appeal through participation was submitted by the attorney for the interveners on 06.02.2014. In this case, it is not possible for the interveners, who participated in the case as the main interveners alongside the plaintiff, to be within the scope of the concept of “counterparty” specified in HMUK 433/II-2.
As such, since it is not possible for the attorney for the main interveners to request an appeal through participation with the petition submitted after the legal appeal period, it has been decided by majority of votes that the appeal request should be rejected.
II-In the examination of the appeal objections of the plaintiff’s attorney;
The dispute between the local court and the Special Chamber centres on whether the transfer made to the defendant contractor pursuant to the construction contract in return for the transfer of land share can be considered as a real sale, and according to the conclusion to be reached here; whether it is possible for the plaintiff to use the pre-emption right.
In the solution of the dispute, firstly, the nature of the pre-emption right should be clarified.
As it is known, since there is a common management and usage situation between the shareholders in shared ownership, it is important that the shareholders know and recognise each other. As a requirement of this need, in order to prevent the entry of a foreign person between the shareholders, to prevent the immovable from being divided into smaller parts, and to ensure that the shares are collected in the hands of the shareholder as much as possible, the right of assignment of the shareholder in shared immovable property is limited and the legal right of pre-emption is recognised.
The right of pre-emption is one of the legal restrictions of the ownership of immovable property, and it is stated in the Unification of Case Law Decision dated 26.12.1951 and numbered 1/6 that it is a right that gives rise to innovation.
On the other hand, in the Decision of Unification of Jurisprudence dated 20.06.1951 and numbered 5/13, the legal nature of the right of pre-emption is stated as follows: “The right of pre-emption is an innovative right to be exercised under certain conditions, such as the sale of the usufructuary share to a third party and its use within one month from the date of the sale, and it serves to create a new legal situation with the unilateral declaration of will of the chief that he has used this right. By exercising this right, the chef becomes successor to the customer without the need to conclude a new contract”.
Article 732 of the Turkish Civil Code No. 4721 titled “Legal Preemption Right – Preemption Right Holder” stipulates that “in the event that a shareholder in a shared ownership 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”.
Although there is no clear definition of the right of pre-emption in the aforementioned regulation, considering that the basic principle is the freedom of ownership and the power of disposition, while limiting the right of assignment of the shareholder, this limitation is limited and the right of pre-emption is foreseen only for sales contracts.
This issue was also adopted in the Unification of Case Law Decision dated 20.06.1951 and numbered 5/13, the content of which is explained above; in the justification of the decision, it was stated that the legal pre-emption right, which is one of the encumbrances of immovable property, is a right in rem that gives the person who owns a share in the immovable property the right to purchase the share of another person in the event that the share of another person is sold to a third party, with the amount of what that share cost the customer and within a certain period of time.
As it is clear, in order to be able to talk about the right of legal pre-emption, the share in an immovable subject to the provisions of shared ownership must be sold to a third party; the subject of the right of pre-emption is the sale of shares.
The legal right of pre-emption 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.
For example, if the assignment is in the form of a grant, the right of pre-emption cannot be exercised since the grant aims to transfer a property to the ownership of a third party free of charge. Because, in pre-emption, the price that the person who uses the pre-emption right is obliged to pay to the purchaser of the share does not exist in the grant, and it is not possible for the person who uses the pre-emption right to request the transfer of the share to him without paying any price.
At this stage, it is useful to make the following explanations and determinations regarding the works (construction in return for land share) contracts regulated under the Turkish Code of Obligations (TCO) numbered 6098:
As a rule, construction contract in return for land share transfer, which is a type of work contract defined in Article 470 of the Turkish Code of Obligations No. 6098 (abrogated Article 355 of the Code of Obligations (BK) No. 818), are contracts that include mutual performances and impose obligations on two parties. The landowner, one of the parties to the contract, is obliged to deliver the land to the contractor under the conditions in accordance with the contract, and when the contractor fulfils his/her performance against him/her, he/she is obliged to transfer the title deed of the independent sections left to the contractor in return for his/her performance. It is seen that in these contracts, the fee (price) is paid in cash by the land owner.
The performance of the contractor, who is the other party to the contract, is to construct the building and deliver it to the land owner under the conditions agreed upon in the contract. The contractor, who has signed such a contract, acquires personal rights against the landowner when he fulfils his obligations arising from the construction contract and may request the landowner to transfer the title deeds of the independent sections left to him in accordance with the contract. Pursuant to Articles 183 et seq. of the TCO (162 et seq. of the Code of Obligations), he may also transfer and assign this personal right to third parties, provided that it is in writing, without the need to obtain the consent and approval of the land owner.
It should be noted immediately that if the immovable property to be built on is subject to shared ownership, all owners must participate in the contract pursuant to Article 692 of the Turkish Civil Code (TMK) numbered 4721. Otherwise, since the contract is not capable of performance, the parties have the right to claim back what they have given to each other based on the provisions of unjust enrichment due to the invalid contract.
The subject of the construction contract in return for land share is the construction of a building on the land owned by the land owner. Construction refers to a material work.
The first element of a construction in return for land share contract is “the contractor’s obligation to create a construction (building)”. This is because, in these contracts, the contractor is obliged to create a building (construction) by providing financing and by using art, skill and labour when necessary. However, the subject matter of the construction contracts may be the construction of a new building as well as the construction of an addition to an existing building or the repair work in the building.
In construction contracts in return for land share, “consideration” is one of the elements of the contract, as is generally the case in contracts of works. However, as stated above, here, the landowner fulfils his performance by transferring the agreed land share, not by giving a sum of money to the contractor as consideration for the construction.
In construction contracts in return for land shares, the landowner may transfer the shares to the contractor in different ways; Sometimes, a condominium easement is established by the owner of the land for the independent sections of the building to be constructed on a land to be subject to condominium ownership in the future, (Art. 2/c of the Condominium Law No. 634) and the transfer of a certain proportion of land shares corresponding to the independent sections agreed to be given to the contractor in the contract is undertaken, and the transfer is made to the contractor as agreed in the contract.
Sometimes, the land title deed is transferred to the contractor without the establishment of a condominium easement on the land, and when the construction is completed in the future, the condominium easement is established and the condominium easement list is made together according to the share in the contract.
Sometimes, a gradual transfer of title deed is agreed in the contract according to the stage of construction and the landowner transfers the title deed accordingly.
The most common form of transfer in practice is the transfer made by the landowner promising the sale of the land shares to be transferred and the contractor undertaking the construction of the construction. Accordingly, the contractor shall fulfil its performance in accordance with the contract, and in return, the contractor may request the landowner to register the promised share in its name.
Pursuant to the construction contract in return for land share, the assignment of immovable property or immovable shares made by the land owner to the contractor or to third parties at his request is in the nature of “advance payment” given in order to provide finance for the construction of the construction; the contractor may obtain a “personal right” to the extent that he performs his counter-performance and may only assign his personal right to third parties.
In the event that the contractor fulfils all of its obligations and the contract is concluded with performance, the personal right is transformed into a real right. As a matter of fact, third parties who acquire shares from the contractor due to the construction contract in return for land shares cannot benefit from the provisions of Article 1024 of the Turkish Civil Code and Article 1023 of the same Code.
Until the legal delivery of the construction, the landowner has the right to take back the shares given in advance. The legal delivery is deemed to have been realised if the construction is completed in accordance with the legal legislation (obtaining the occupancy permit).
At this stage, it is necessary to emphasise whether the transfer of shares made to the contractor in accordance with the construction contracts in return for the transfer of land shares can be considered as a real sale.
As stated above, the right of pre-emption shall not arise in the share transfers that are not subject to a real sale and do not constitute 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 it from those who acquired the share with a consideration other than money, by fulfilling the same conditions.
In the construction contract in return for land share, the land owner transfers the land share to the contractor in return for the construction of the construction instead of a certain amount of money, and since this transfer is in the nature of “advance payment” given to the contractor in order to provide finance for the construction of the construction, and since the land owner can always request the return of his share in case the contractor does not fulfil his performance, it is not possible to use the pre-emption right in such assignments.
Because in pre-emption, the price that the person using the pre-emption right is obliged to pay to the purchaser of the share, i.e. a certain amount of money, does not exist in the construction contract in return for the transfer of land share, and the price of the share is paid by creating a work. It is not possible for the person exercising the right of pre-emption to request the transfer of the share to him without paying any price, and it is unthinkable that the contractor should build the building and deliver it to the landowner under the conditions agreed in the contract.
In the concrete case, the plaintiff claimed that FC Yapı Endüstri ve Dış Ticaret Ltd. Şti., one of the shareholders of the immovable property numbered 838 block 21 parcel, which is related to the share subject to the lawsuit, sold its share to the defendant on 30.3.2010 and that it became aware of the sale on 08.04.2010 and requested the recognition of the pre-emption right. The defendant, on the other hand, defended that the assignment made in the title deed was not a real sale, and that it was transferred as a requirement of the construction contracts in return for land share transfer and the ordinary partnership between the contractor companies.
According to the documents in the file, on 06.08.1998, some of the shareholders, including the plaintiff, entered into a contract with the contractor Süleyman Güzel for the sale of immovable property and construction in return for flats, and some other shareholders entered into a contract with GMO Yapı Grup Ltd Şti for the same immovable property, then the contractor Süleyman Güzel transferred his rights and obligations arising from the contract to GMO Yapı Grup Ltd Şti on 02.03.2006, and the construction contract was terminated by the landowners on 14.07.2009 due to the contractor’s failure to fulfil its obligations.
2006, the contractor Süleyman Güzel transferred his rights and obligations arising from the contract to GMO Yapı Grup Ltd Şti on 02.03.2006, the construction contract was terminated by the landowners on 14.07.2009 upon the failure of the contractor company to fulfil its obligations, and then on 15.07.2009, a construction contract was concluded with the non-suit FC Yapı Endüstri Ltd Şti on the promise of sale and construction in return for flat, and it is understood that eight shareholders, including the plaintiff, did not participate in this contract.
On the other hand, on 19.02.2010, FC Yapı Endüstri ve Dış Tic. Ltd. Şti, Dia Finans Danışmanlık Ltd. Şti. and Timur Gayrimenkul Geliştirme Yapı ve Yatırım AŞ, and it is understood that the assignment subject to the lawsuit was made pursuant to the protocol dated 08.03.2010, which was arranged between the ordinary partners.
From all these explanations, it is undoubted that the assignment transaction subject to the lawsuit was made pursuant to the construction contract in return for the transfer of land share. In fact, there is no dispute between the Special Chamber and the Local Court on this matter. As stated above, if the share transfer is made due to the construction contract, the right of pre-emption cannot be used.
In this case, it is not possible for the plaintiff to use the right of pre-emption, since the assignment transaction subject to the lawsuit was made in accordance with the construction contract in return for the transfer of land shares and is not a real sale. However, in the concrete case, the immovable to be built on is subject to shared ownership, and since eight shareholders, including the plaintiff, did not participate in the construction contract, the contract is not capable of performance, and the parties always have the right to claim back what they have given to each other due to the invalid contract, based on the provisions of unjust enrichment.
On the other hand, pursuant to Articles 2 and 3 of the Turkish Civil Code, everyone is obliged to comply with the rules of honesty when exercising their rights, and it is not possible to speak of the good faith of the plaintiff, who initially signed a construction contract with the previous contractors and knew that the other contracting shareholders did not really intend to sell the immovables but transferred them with the intention of becoming homeowners.
During the discussions held in the General Assembly of Civil Chambers, some members argued that the assignment subject to the lawsuit is in the nature of real sale, the fact that it was made due to the construction contract in return for land share transfer will not prevent the use of the pre-emption right, and that it is not possible to evaluate the plaintiff’s use of his right arising from the law as bad faith; however, this opinion was not accepted by the majority for the reasons stated above.
As such; the local court, considering the issues explained above, resisting the previous decision against the Special Chamber’s reversal on the grounds that the transfers made in accordance with the construction contract in return for the transfer of land share are not real sales and that the use of the pre-emption right is incompatible with good faith since these contracts are also known by the plaintiff is in accordance with the procedure and the law.
Therefore, the decision of resistance should be upheld.
CONCLUSION :
1- For the reason explained in subparagraph (I.) above, the appeal requests of the attorneys for the main defendants were rejected by majority of votes at the first meeting held on 27.11.2015,
2- For the reason explained in sub-paragraph (II) above, the appeal objections of the plaintiff’s attorney were rejected and the judgement was APPROVED, and it was decided by majority of votes in the second meeting held on 04.12.2015, since the necessary appeal judgement fee had been paid in advance, no further fees were required.
VOTE AGAINST
The plaintiff shareholder filed a claim for cancellation and registration of the title deed against the defendant purchaser company based on the legal pre-emption right due to the sale of shares dated 30.03.2010. The other shareholders (62 persons) claimed that the sale of shares was based on the construction contract in return for land share and that it was not a real sale, and requested the dismissal of the lawsuit, and if it is accepted that it was a real sale, they also requested registration in proportion to their shares by granting them the right of pre-emption.
Defendant requested the dismissal of the lawsuit based on the pre-emption right that should be used in real sales, since the sale of shares was based on the construction contract in return for land shares, and the court decided to dismiss the lawsuit.
Upon the reversal of the dismissal decision by the High Special Chamber stating that the case should be accepted, the court resisted its previous decision.
In the grounds of resisting; the right of pre-emption is a right that can be used in real sales, and the sale of shares made due to the construction contract in return for land share is not a real sale,
Since the construction contract in return for land share is not signed by all shareholders, it is invalid, therefore, the shareholders who sell shares can take it back from the contractor in case of termination of the invalid contract. The case law of the Supreme Court of Appeal General Assembly of Civil Chambers dated 23.06.2010 and numbered 2010/6-341 Main, 2010/346 Decision is of the same nature,
Since it was known by the plaintiff that the sale of shares was based on the construction contract in return for land share, it was emphasised that the plaintiff was not in good faith. This reasoning was adopted by the majority of the General Assembly of Civil Chambers and the judgement of the court regarding the rejection was upheld.
First of all, it should be noted that it is not possible to accept that the owner of the right of pre-emption is in bad faith in the exercise of the right of pre-emption due to a contract to which the owner of the right of pre-emption is not a party and which is not subject to dispute when it is invalid.
Because, according to Article 692 of the Turkish Civil Code No. 4721, a dispositive transaction such as construction on an immovable subject to shared ownership is only possible with a unanimous decision of all shareholders. Likewise, according to Article 14 of the Condominium Law No. 634, in order to establish a condominium easement, all shareholders must apply to the Land Registry Office together. Otherwise, the building cannot be constructed, a construction licence cannot be obtained. The construction project cannot be approved and the condominium cannot be established. Nevertheless, the construction of the construction carried out by some stakeholders may be stopped, demolished, and prevention of seizure may be requested. In all these cases, the shareholder who seeks his/her right is not considered to be in bad faith in any way. I.n fact, it is not possible to evaluate the scope of the property right in any other way.
In the light of these explanations, the plaintiff is a shareholder of the immovable property subject to the lawsuit. A construction contract was concluded by the shareholders other than the plaintiff and his seven friends in return for land share. The counterparty to the contract, namely the contractor, is a consortium established by Dia Finans-FC Yapı-Timur Gayrimenkul Ordinary Partnership. Sale of shares subject to the pre-emption right was made by FC Yapı Endüstri ve Dış Ticaret Şirketi, which is a member of the consortium, to Dia Finans Danışmanlık Limited Company, which is also a member of the consortium. The pre-emption lawsuit was filed against this share sale.
As explained in the jurisprudence of the Court of Cassation; the right of pre-emption is a right that authorises other shareholders to purchase this sold share in the event that a shareholder sells his/her share on the immovable immovable immovable partially or completely to a third party. This right arises as soon as the shared ownership relationship is established and becomes exercisable upon the sale. The basis of this right is Article 732 of the Turkish Civil Code. According to the aforementioned article, “in the event that a shareholder in a shared ownership sells his share in the immovable immovable to a third party in whole or in part, the other shareholders may use the right of pre-emption.”
The plaintiff has exercised this right arising from the law, and the other shareholders have exercised the same right as the main interveners in the lawsuit filed by the plaintiff. If the lawsuit is accepted, the interveners will be entitled to registration in proportion to their shares, just like the plaintiff.
At this point, it is necessary to focus on whether the sale of the shares subject to the pre-emption right is a real or collusive sale since it is based on the construction contract in return for land share, even if it is invalid, and whether this situation will affect the plaintiff’s law.
As it is known, collusion in a contract is possible for the parties to that contract. In other words, only the parties may conclude a collusion in a contract. The collusion of a third party who is not a party to the contract cannot be mentioned and cannot be held responsible for party collusion.
The plaintiff is not a party to the sale of shares subject to the pre-emption right. In fact, in pre-emption cases, the defence of collusion cannot be heard for the plaintiff who is not a party to the sale. On the contrary, in some cases, the plaintiff may claim collusion. For example, the plaintiff may claim collusion by claiming that the transaction made as a donation in the title deed is actually a sale, and in case of proof, the plaintiff may use the right of pre-emption.
In this respect, it cannot be claimed that the sale in our concrete case is collusive for the plaintiff, therefore it is not a real sale. Moreover, the sale of shares was not realised by the real persons who are among the landowners of the construction contract in return for land shares. It was realised between two companies which are among the contractors (consortium) of the contract. This situation alone leads to the conclusion that the sale is considered as a real sale for the plaintiff.
In this context, there is no doubt that the right of pre-emption cannot be exercised in the presence of a construction contract in return for land shares concluded by all shareholders in a binding manner. However, in this case, it must be accepted that the sale of shares made to the contractor in accordance with the contract is not a real sale, but an advance transfer of shares. As a result, the bad faith of the shareholder who uses the pre-emption right is mentioned. In our concrete case, there is no such situation.
It should be added that the lawsuit filed against the plaintiff and his friends based on Article 696 of the Turkish Civil Code resulted in rejection, and this decision was finalised after being reviewed by the Court of Cassation. In this case, the work to be done is not to attach legal consequences to the invalid agreement and to find forced solutions. The shareholders who cannot be persuaded should be persuaded, and if they cannot be persuaded, it should be evaluated that the action for elimination of the shareholding is a lawful way.
For these reasons; I do not agree with the opinion of the majority of the honourable majority that the decision of the local court to resist, which is not in accordance with the procedure and the law, should be reversed.
…
President of the 18th Civil Chamber
VOTE AGAINST
Some landowners, including the plaintiff …, concluded a construction contract with the contractor Süleyman in 1998. In the following dates, other shareholders also made a contract with the contractor GMO Yapı Grup Ltd. Şti. for the same purpose. Later on, the contractor Süleyman transferred all his rights and authorisations arising from the contract to GMO Ltd. with the consent of the shareholders, including the plaintiff. In this way, all shareholders participated in the contract; the contractor GMO Ltd. could not start the construction due to economic difficulties, and the construction contract was mutually terminated in agreement with the landowners.
Later on, some land owners signed a new construction contract with a new contractor company (Dia Finans-FC Yapı-Timur Gayrimenkul Ordinary Partnership) without obtaining the approval of 8 persons including the plaintiff ….. Although the plaintiff … and 7 of his friends initially approved the demolition and construction of the building on the immovable subject to the lawsuit with the Consent Letter dated 12.09.2007, they did not approve the subsequent construction contract and did not transfer their shares to the new contractor Dia Finans-FC Yapı-Timur Gayrimenkul Ordinary Partnership. Their application for the cancellation of the building licence was also rejected. On the other hand, as a result of the trial of the lawsuit filed for the exclusion of … and its friends from the shareholding in the file numbered 2010/969, it was decided to dismiss the lawsuit and the decision became final.
The plaintiff … has used the legal pre-emption right in this case against the share sales made by one of the other land owners to the defendant company in order to realise the construction contract in return for flats.
In order for the sale of shares in an immovable property to be subject to the right of pre-emption, it must be a real sale. In order to determine whether a share sale is a real sale or not, the issue should be evaluated under three different headings;
A. There is no regulation in our laws regarding unreal sales, except for the Turkish Civil Code. Article 733 of the Turkish Civil Code states that the pre-emption right cannot be exercised only in forced auction sales.
B. The Court of Cassation has issued Unification of Jurisprudence Decisions on some issues regarding unreal sales. For example
a) It is accepted that the sale of shares to heirs and some other close relatives should be considered as donation. If a shareholder of an immovable property under shared ownership assigns his/her share to a husband, wife, son or relative, the right of pre-emption cannot be asserted if it is claimed and proved that this contract, which is shown as a sale in form, is not a sale in reality, but a transaction related to the right of inheritance or a purposeful transaction such as a grant. (27.03.1957 dated, 12/2 numbered Unification Decision of the Court of Cassation)
b) If there is a de facto division in such an immovable property, it is stated that it would be contrary to the rule of honesty for the shareholder who knows this to use the pre-emption right.
If the immovable property to which the share subject to the pre-emption case is related is specially divided by the shareholders among themselves and each shareholder uses a certain part, and one of them sells the place he uses and the share corresponding to this place to a third party, it is incompatible with the rule of honest behaviour in Article 2 of the TMK for the plaintiff, who did not claim a right in this place at the time of the seller, to use the pre-emption right due to the sale made in the title deed. The claim of bad faith may be raised at any stage of the lawsuit pursuant to the Supreme Court of Appeal Unification of Jurisprudence Decision dated 14.2.1951 and numbered 17/1, and should be taken into consideration by the court automatically.
C. Some other unreal sales have been adopted by the case law of the Court of Cassation, and similar examples have been accepted as unreal sales in the doctrine.
Unreal sales are explained in an article by Prof. Dr. Fikret EREN as follows; “… The right of pre-emption cannot be exercised in the following cases:
-There is no legal right of pre-emption in movables,
The situation is the same in condominium ownership, if it is a co-ownership (Kat Mül. K. art. 8),
The right of pre-emption cannot be exercised in cases of donation or trampa, which give rise to the obligation of transfer of ownership.
-This is also the case in cases of expropriation and land consolidation.
-In forced auction sales among the sales made through auction (TMK. art.733/I)39.
In cases where the ownership of the share subject to the right of pre-emption is transferred to another
in cases where it is transferred to a person,
-In mixed contracts where the character of sale is not predominant but the character of forgiveness is predominant,
In cases where the counter-performance undertaken by the third party is not possible to be fulfilled by the owner of the pre-emption right, in cases where the subject of the pre-emption right (share) is put as capital in a company.
-in case of merger of two companies,
In cases where the immovable property, which is the subject of a partial ownership, is transferred as a whole or a certain part of it, the right of pre-emption cannot be asserted if the transfer is unanimously decided by all shareholders.
-In the process of establishing a foundation,
-I.n cases where the purposes and motives related to the law of inheritance, such as renunciation of inheritance, etc. prevail in the inheritance and division of the inheritance,
-In cases where the shareholder transfers his/her share to his/her children, to his/her husband or wife or to a relative, even if there is a sales contract in form, in reality there are purposes related to inheritance law or donation other than sale,
In the event that the immovable property subject to partial ownership is actually divided among the shareholders and a part of it is sold to a third party by the shareholder to whom it was given, a pre-emption lawsuit cannot be filed.
The right of pre-emption cannot be exercised in immovables that are not registered in the title deed.
-In the establishment of usufruct right and housing right,
-and finally in relationships such as ordinary lease, product lease, which give rise to an obligation to use the property
Since there is no sale, the right of pre-emption cannot be used.” (Prof. Dr. Fikret EREN, Gazi University Journal of Faculty of Law C. XII, Y. 2008, Sa. 1-2, Page 114-117.)
The lawsuit is related to the right of legal pre-emption.
This right is a right arising from the law and attached to property. By virtue of the law, it arises directly and exclusively in the person of the owner, i.e. the shareholder. It is a purely formal matter. In other words, every shareholder who owns a share in an immovable property may, as a rule, use the right of pre-emption.
Stakeholders also have the right to sell their shares to a third party of their choice as a rule. However, if he sells his share, he must act accordingly, taking into account the consequences of the use of the pre-emption right by other shareholders. In other words, he will bear the consequences.
In the case under consideration, since one of the shareholders transferred his share to a third person who is not a shareholder in the title deed, the plaintiff used his legal pre-emption right.
The defendant … Ltd. Şti. defends that the sale of the share subject to pre-emption was made for the purpose of organising a construction contract between the parties in return for flats, and that it was not a real sale.
Here, it is necessary to evaluate the principles regarding legal pre-emption and firstly, whether the sale of shares to the defendant is a real sale or not.
The construction agreements in return for land shares regarding the immovables subject to co-ownership must be concluded with all land owners. Otherwise, the contract is invalid as it is not possible to perform.
Here, the new contractor Consortium should have acted as a prudent merchant and firstly, it should have arranged a protocol with all the owners of the immovable that it wanted to make a construction contract in return for land share, and should have annotated the construction contract to the land registry, and in this way, it should have obtained the approval of all owners. The request to take over the shares of the shareholders who have not signed the agreement on the basis of the PPA issued without the approval of the plaintiff and his friends is an abuse of right.
Therefore, it should be accepted that the sale of shares to the defendant in the pending case is a real sale. Title deed cancellation and registration lawsuits filed based on the right of pre-emption are subject to formal rules, and during the trial of these lawsuits, the issue of whether the plaintiff is in good faith or not cannot be raised in any way, except for the exceptional circumstances listed above, and whether he is in good faith or not cannot be discussed.
For the reasons explained above, since the reversal decision of the 6th Civil Chamber of the Court of Cassation dated 20.11.2012 and numbered 2012/11962 E. 2012/15095 K. is appropriate and since I think that the court’s decision to resist should be reversed, we do not agree with the decision of the majority that the decision of the court should be approved.
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