There Is No Statute Of Limitations For Wrongful Registration Lawsuits Related To Execution And Tender Procedures
1st Civil Chamber 2019/1645 E. , 2021/2045 K.
“Case Law Text”
COURT : SAMSUN REGIONAL COURT OF JUSTICE 3RD CIVIL CHAMBER
CASE TYPE : CANCELLATION AND REGISTRATION OF TITLE DEED – RECEIVABLE
At the end of the lawsuit between the parties with the request for cancellation and registration of the title deed and price, upon the appeal of the decision of the first instance court on the rejection of the case by the plaintiff … The decision of the 3rd Civil Chamber of the Regional Court of Justice regarding the rejection of the appeal application was appealed by the plaintiff with a request for hearing within the legal period;
Upon the notification made for 06. 04.2021 Tuesday, the appellant, the plaintiff, the Principal …, and the appellant, the defendant’s attorney… came, the hearing was started, after it was decided to accept the petition of appeal, which was understood to have been submitted and registered in due time, the oral statements of the attorney and the principal were heard, the hearing was declared to be over, and the matter was left to the decision. Subsequently, the report prepared by the Examining Judge … was read and his opinion was taken. The file was examined and the necessity was discussed and considered:
-DECISION-
The lawsuit is related to the request for cancellation of title deed and registration-compensation based on the legal ground of improper registration.
The plaintiff, while he was the registered owner of the immovables numbered 667, 994, 1010 parcels subject to the lawsuit, claimed that the said immovables were tendered to the defendant as a set-off for the receivable as a result of the foreclosure proceedings and irregular tender made by the defendant in violation of the law, that the defendant started the proceedings before the payment date of the loan and that he had the immovables subject to the lawsuit at very low prices, although he collected his receivable, and that he was not aware of the sale, and the cancellation of the title deeds of the immovables subject to the lawsuit and their registration in his name;
In his reply petition, he stated that the immovables subject to the lawsuit were sold with irregular notification, below their fair value and without newspaper announcement, and that duplicate enforcement proceedings were carried out, and that the immovables subject to the lawsuit should be registered in his name, or if not, the fair value should be paid; 24. 02.02.2017 dated amendment petition, although cancellation registration was requested in the petition, since the immovables subject to the lawsuit were transferred to third parties by the defendant, the payment of the fair value of the immovables; With the petition dated 20.03.2017, he requested the collection of 73.668,00 TL with interest from the defendant regarding the value of the immovables.
The defendant defended the dismissal of the lawsuit by stating that the court is unauthorised and without jurisdiction, the statute of limitations has expired, the immovables subject to the lawsuit were acquired by tender as a result of the enforcement proceedings against the defendant based on the loan receivable secured by the mortgage, the tender was finalised, there was no irregularity in the transactions, the immovables subject to the lawsuit were transferred to third parties, there is no party status, and there is a final judgement due to the previous lawsuits filed by the plaintiff.
Upon the plaintiff’s appeal of the decision rendered by the court of first instance regarding the dismissal of the lawsuit on the grounds that the statute of limitations for unjust enrichment has expired, the 3rd Civil Chamber of Samsun Regional Court of Justice decided to reject the appeal.
From the file content and the collected evidence; according to the registration letter dated 27.08.1996 dated 27.08.1996 written to the land registry directorate from the file numbered 1995/98 Instruction of the Alaçam Execution Directorate of the immovables numbered 667, 994, 1010 parcels subject to the lawsuit, it was stated that the sale was made against the receivables of the defendant/creditor Vakıflar Bank, the tender was finalised and the registration of the immovables in the name of the buyer was requested, according to the content of some official deeds,
the immovables subject to the lawsuit were registered in the name of the defendant … while they were registered on 18. 08.1998 dated 18.08.1998 to the defendant …, and by him to the defendant … with the sale transaction dated 23.12.2002, the immovable immovable immovable parcel numbered 667 was transferred to the defendant …, the immovable immovable parcel numbered 1010 was transferred to the defendant …, and the immovable immovable parcel numbered 994 was transferred to the defendant … with the sale transaction dated 29. 07.2003 dated 29.07.2003 was registered in the name of the non-suiter …,
the title deed records, official deeds and their bases were not brought in a way to show the entire circulation of the immovables subject to the lawsuit, according to the answers to the writings, it was reported that the file numbered 1996/98 Instruction of Alaçam Execution Directorate was destroyed, but according to the records, Samsun 2. Execution Directorate’s file numbered 1995/2135, that the creditor is the defendant …, the debtor is the plaintiff …, and that the file numbered 1995/2135 of the 2nd Execution Directorate was cancelled and destroyed on 23.09.1997.
As it is known; Article 705 of the Turkish Civil Code No. 4721 reads as follows: “The acquisition of immovable property is by registration. In cases of inheritance, court decision, forceful execution, occupation, expropriation and other cases stipulated by law, ownership is acquired before registration. However, in these cases, the ability of the owner to perform disposition transactions depends on the registration of the ownership in the land registry.” Article 1022/1: “The rights in rem are born upon registration in the land registry; they take their order and dates according to the registration.”, Article 1023: “The third person who acquires ownership or another right in rem based on the registration in the land registry in good faith shall be protected.”, Article 1024/2: “A registration that is based on a non-binding legal transaction or lacks a legal reason is void.”.
Pursuant to the above-mentioned legal regulations, real rights arise upon registration in the land registry, and in order for the registration to have legal consequences, it is mandatory to have a valid legal reason. It is clear that this issue arises from the principle of the title deed. However, there is no doubt that if the registration does not have a legally valid reason, the registration will be deemed as an irregular registration and the registration will have to be cancelled.
It should be noted immediately that, although it is clear that the ownership of the immovable property can be acquired before registration by forced auction pursuant to Articles 705/2 of the Turkish Civil Code (TMK) No. 4721 and 134/1 of the Execution and Bankruptcy Law (İİK) No. 2004, there is no doubt that the acquisition of ownership may become corrupt if the legal basis of the auction disappears due to irregularities in the enforcement proceedings or tender procedures.
As for the concrete case; although the lawsuit was filed with the request for cancellation and registration of the title deed based on the legal ground of corrupt registration and was converted into a price at the stages, the court of first instance and the regional court of appeal made an erroneous assessment that the subject of the dispute is a receivable based on unjust enrichment and that the statute of limitations for unjust enrichment has expired.
As such; considering that such lawsuits based on the right of property and with the claim of fraudulent registration due to irregularities in enforcement proceedings and tender procedures can be filed at any time without being subject to the statute of limitations and deprivation of rights, it is not correct to make a written decision with an erroneous legal evaluation, while the merits of the matter should be examined in accordance with the concrete facts and principles mentioned above and a decision should be made according to the result.
With the acceptance of the plaintiff’s appeal objection, which is deemed appropriate in the aforementioned aspect, pursuant to Article 373/1 of the Code of Civil Procedure No. 6100, the decision of Samsun Regional Court of Appeals No. 3. It was unanimously decided on 06/04/2021 that the decision of the 3rd Civil Chamber of the Samsun Regional Court of First Instance shall be annulled, the decision of the Court of First Instance shall be reversed in accordance with Article 371/1-a of the CCP No. 6100 for the reasons written above, the file shall be sent to the Alaçam Civil Court of First Instance, a copy of the decision shall be sent to the 3rd Civil Chamber of the Samsun Regional Court of First Instance, and the advance fee shall be returned to the appellant.
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