Violation Of The Right Of Ownership Due To Non-Execution Of The Court Decision Ruling On The Registration Of Immovable Property Based On The Pre-Purchase Right
Events
The applicants are joint owners of the immovable property numbered 434 parcel. Upon the sale of the immovable immovable parcel 435, which is agricultural land bordering the said immovable, the owners of the immovable parcels 434 and 436 filed deed cancellation and registration lawsuits based on the right of pre-emption.
In the lawsuit filed on 23/8/2016 by A.S., the owner of the immovable property numbered 436 parcel, an interim injunction was issued by the civil court of first instance on 7/9/2016 in order to prevent the sale and transfer of the immovable property to third parties, and the said decision was registered in the land registry.
The applicants filed a lawsuit on 12/12/2016. Although both cases were filed in the same court, the cases were decided by different judges. In the case filed by the applicants, the civil court of first instance ruled on 7/3/2017 and ordered the registration of the immovable property in favour of the applicants. The decision was finalised without recourse to legal remedies. The applicants requested the registration of the immovable property in their names as required by this judgement. Civil court of first instance instructed the land registry office not to register the immovable property in favour of the applicants due to an earlier lawsuit filed by A.S. and the land registry office rejected the applicants’ request for registration.
The lawsuit filed by A.S. was concluded by the civil court of first instance on 19/7/2017 and it was ruled that the immovable property was registered in the name of A.S.
Thereupon, the applicants filed two lawsuits before the administrative court for the cancellation of the administrative act regarding the rejection of the registration request, and the administrative court rejected both lawsuits on the grounds that the land registry office did not fulfil the registration request in line with the request of the civil court of first instance and that it took action within the framework of subordinate authority. The appeal against the decisions was rejected by the regional administrative court.
Allegations
The applicants claimed that their right to property was violated due to the non-execution of the court judgement ordering the registration of the immovable property based on the right of pre-emption.
The Court’s Assessment
Although the land registry office hesitated to execute the registration decision in favour of the applicants due to the interim injunction issued by the Civil Court of First Instance on 7/9/2016, it is clear that interim injunctions do not prevent the registration of court judgments. The interim injunction decision is intended to prevent the immovable property owner from selling or transferring the immovable property to third parties and does not have a function to prevent the execution of the court judgements. The opinion in the decision of the civil court of first instance dated 19/7/2017 that A.A.’s acceptance of the lawsuit is in fact a consensual transfer of the immovable property is also not acceptable.
Although the defendant A.A. accepted the lawsuit, the ownership of the immovable property was transferred to the applicants by the court decision, not by A.A.’s acceptance. On the other hand, it is at the discretion of the judge hearing the aforementioned case to assess whether the parties to the lawsuit are in bad faith or not. Even if the judge makes a mistake, the binding nature of his/her judgement does not disappear. Therefore, the land registry office cannot refrain from executing the registration decision by citing the interim injunction. The land registry office’s failure to execute a court judgement clearly violates Article 138 of the Constitution.
Moreover, in the concrete case, it was observed that the land registry office refrained from executing the registration decision in favour of the applicants in line with the instruction of the civil court of first instance. It should be noted that it is not acceptable for a judicial authority to instruct the administration not to execute a decision rendered by another judicial authority or by the court itself, unless there is a legal basis. The fact that the judgement is considered to be unlawful does not justify the courts to suspend the execution of a judgement through a procedure not foreseen in the law. The execution of unlawful judgements can only be suspended by following the methods stipulated in the relevant procedural laws. Any other intervention contradicts Article 138 of the Constitution.
It has been observed that in the letter sent by the civil court of first instance to the land registry office, which contains an instruction not to register the immovable property in favour of the applicants, it is emphasised that the interim injunction was issued before the applicants filed a lawsuit. It is not the duty of the Constitutional Court to determine the conditions for the exercise of the right of pre-emption under the Law No. 5403 on Soil Conservation and Land Use,
how to decide in the event of the exercise of this right by more than one neighbouring immovable owner, and whether the issuance of an interim injunction in favour of one neighbour constitutes an obstacle for the other neighbour to file a lawsuit. These issues are related to the essence of the pre-emption right regulated under Law No. 5403 and it is the duty of the courts of first instance to resolve them.
Nevertheless, the civil court of first instance evaluated these issues and rendered a judgement in the case brought by the applicants. The issue before the Constitutional Court is not whether this decision is in compliance with Law No. 5403, but whether its non-execution violates the right to property. If the civil court of first instance thought that the interim injunction granted in the lawsuit filed by A.S. gave A.S. a superior right and prevented a registration decision in favour of the applicants, it should have taken this into consideration before ruling in favour of the applicants.
The fact that the civil court of first instance implied that its decision was wrong with an administrative letter sent to the land registry directorate after the decision was made and requested the land registry directorate not to implement the decision is incompatible with Article 138 of the Constitution and incompatible with seriousness. Even if it is legally erroneous, the court decision must be executed unless it is revoked in accordance with the procedures stipulated in the law.
The thought that the rights of third parties would be harmed does not justify the civil court of first instance to instruct the land registry office not to execute the judgement. At the time the applicants filed their lawsuit, the lawsuit filed by A.S. was also pending. It would have been appropriate in terms of the good administration of justice and procedural economy for the civil court of first instance to consider both cases together and then decide. However, it was assessed that the civil court of first instance tried to remedy this negligence and failure in file management by suspending the execution of the decision without any legal basis, thus depriving the applicants of the right to execution of a court decision in their favour.
In the lawsuits filed by the applicants, the administrative court also concluded that the land registry office’s rejection of the registration request was in accordance with the law, stating that it was within its subordinate jurisdiction in fulfilling the order of the civil court of first instance. It was observed that the administrative court did not check whether the order of the civil court of first instance dated 7/4/2017 was contrary to Article 138 of the Constitution. Avoiding an examination of the main issue in the dispute by accepting that the aforementioned letter, which is clearly not judicial in nature, is binding on the land registry directorate, has resulted in a lack of effective judicial review.
As a result, it has been concluded that the non-execution of the registration decision in favour of the applicants is contrary to the guarantee of the binding nature of the court decisions and that they must be executed without delay, as stipulated in Article 138 of the Constitution.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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