The Role Of The Creditor Of Immovable Promise Of Sale In The Execution File
General Assembly of Civil Chambers 2013/1693 E. , 2015/1135 K.
“Case Law Text”
COURT : Izmir 9th Execution Law Court
DATED : 23/05/2013
NUMBER : 2013/240 E-2013/345 K.
At the end of the trial held due to the complaint of “lifting the attachment” between the parties, upon the request of the complainant’s attorney for the examination of the decision dated 02.11.2012 and numbered 2012/806 E.-2012/796 K., which was given by İzmir 9th Execution (Civil) Court on the rejection of the complaint, with the decision of the 12th Civil Chamber of the Court of Cassation dated 14.03.2013 and numbered 2012/33312 E.-2013/9415 K;
(…Pursuant to Article 26 of the Land Registry Law and Article 1009 of the Civil Code, the right based on the sales promise agreement, which is in the nature of a personal right, gains real effectiveness and publicity by being registered in the land registry. According to Article 26 of the Land Registry Law, this right can be asserted against third parties for 5 years.
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In the concrete case; Seher Gündoğan, the debtor of the proceeding, sold the property to the complainant third party Y… S… promised the sale of the immovables subject to the complaint, and this sales promise agreement was annotated to the land registry on 02.10.2009, and the immovables in question were seized on 23.11.2011.
In this case, it is understood that the complainant sales promise creditor annotated the sales promise to the title deed records of the immovables before the foreclosure date, and the court should examine the merits of the complaint and decide accordingly by accepting that the complainant has the capacity of active hostility, but the rejection of the request with the written justification is inappropriate…)
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.
APPEALING Counsel for the Complainant
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of the General Assembly of Civil Chambers was appealed in due time and the papers in the file were read, the necessity was discussed:
The request is related to the request for the removal of the attachment placed after the annotation regarding the real estate sales promise agreement in the title deed record of the immovable.
The complainant’s attorney stated that there is a contract of promise of sale of immovable property annotated on 02.10.2009 in favour of his client on the shares in the immovable properties in which the debtor of the proceeding (non-case) Seher Gündoğan is a shareholder, and that this annotation was annotated in accordance with Article 1009 of the Turkish Civil Code (TMK.) and Article 26 of the Land Registry Law (Land Registry Law). ) 26th article of the Turkish Civil Code (TCC) 1009 and the Land Registry Law (Land Registry Law) for five years;
for this reason, the attachment dated 23.11.2011, which was placed later (from the follow-up file initiated by the complained creditor), will not be effective; claiming that they filed a deed cancellation and registration lawsuit against the debtor in the Civil Court of First Instance and that their requests for the removal of the attachment were rejected by the execution manager, and requested a decision to remove the attachment.
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With the examination made by the Enforcement Court on the documents, the encumbrances and annotations placed on the land registry after the annotation of the sales promise agreement to the title deed cannot aggravate the situation of the person in whose favour the sales promise was made; However, since the forcible registration lawsuit filed by the complainant has been concluded and the registration has not yet been made in his name, the decision to reject the request due to the lack of the conditions of the lawsuit, the Special Chamber, upon the appeal of the complainant’s attorney, was reversed by the Special Chamber with the justification shown above, and the court decided to resist by expanding the previous justification.
The decision of resisting was appealed by the complainant’s attorney.
The dispute before the General Assembly of Civil Chambers centres on whether the person in whose favour an annotation of promise to sell immovable property is given in the title deed has the active capacity to file a complaint for the removal of the attachment imposed by the execution directorate after this annotation (the authority to pursue the complaint).
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According to Article 16 of the Enforcement and Bankruptcy Law (with the exception of cases and affairs whose solution is left to general or special courts by law), a complaint can be filed to the enforcement court about the actions taken by the enforcement and bankruptcy offices due to the fact that they are contrary to the law or are not appropriate to the case. As a rule, the right of complaint belongs to the creditor and debtor, who are the parties to the execution file; in exceptional cases, it is also possible for third parties whose rights are damaged to file a complaint.
Although the contract of promise to sell immovable property is, as a rule, a contract that gives rise to personal rights, it gains real effectiveness and publicity by being registered in the land registry pursuant to Article 26 of the Land Registry Law and Article 1009 of the Turkish Civil Code. According to Article 26 of the Land Registry Law, this right may be asserted against third parties for 5 years. However, this right of assertion is not preventive; in other words, the creditor of the promise of sale of immovable property may not prevent the consensual assignment, sale, donation or placing a mortgage on the immovable property or the seizure of the immovable property.
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During the sale of the immovable by the execution office, since this annotation will be included in the title deed record and therefore in the list of obligations, it will also be possible for the promissory note creditor to assert its right against the new owner. In this case, the complainant has no current legal interest in applying for a complaint at this stage.
When the above explanations are evaluated together, the creditor of the promise to sell the immovable is not a party to the execution file and does not have the right of ownership on the immovable, and is not one of the third parties allowed to file a complaint.
For this reason, the decision of the local court to reject the complaint due to lack of authority to pursue is correct and should be approved.
CONCLUSION :
The objections of the complainant Y.. S… attorney’s appeal objections were accepted and the decision of resistance was upheld for the reasons shown above, and it was unanimously decided on 01.04.2015 that there was no need to charge any further fees since the necessary appeal judgement fee had been paid in advance.
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