Zoning Legislation Relates To Public Order
General Assembly of Civil Chambers 2017/599 E. , 2020/431 K.
“Case Law Text”
COURT :Consumer Court
1. At the end of the trial held due to the lawsuit between the parties regarding the request for “termination of the contract and refund of the price”, the decision of Bursa 1st Consumer Court regarding the rejection of the lawsuit was reversed by the 13th Civil Chamber of the Court of Cassation upon the appeal of the plaintiff, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the plaintiff’s attorney.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed:
I. JUDICIAL PROCESS
Claimant’s Request:
4. With the petition dated 03.04.2013, the plaintiff stated that he signed a timeshare holiday contract dated 05.06.2005 for ninety-nine years with the defendant company for ninety-nine years under psychological pressure and without the opportunity to read and examine it, without any intention while he was in Kuşadası. 2005 dated timeshare holiday contract, he made all the payments but never used the facility, he understood that the information told to him and what was written in the contract were different when he examined the text, although it was stated that no dues would be paid unless he had a holiday, they demanded dues from him every year, whereupon he filed a notice of withdrawal to the defendant on 01.04.2013, and requested a decision to terminate the contract and to collect the paid 7.560TL from the defendant.
Defendant’s Reply:
5. Defendant representative; the facility subject to the contract is open for use all year round, the contract was signed in person at the facility, the room to be used and the period to be used are certain, the room chosen by the plaintiff was kept ready for him in the period he chose, the right of withdrawal was not used in due time, the contract cannot be considered as a door-to-door sale, the client company has all documents such as the certificate of occupancy, building licence and certificate of opening a workplace, but these documents have nothing to do with the case at hand, because timeshare right and timeshare holiday contract should not be confused with each other,
The tenant is bound by the lease agreement as long as he can benefit from the leased property, the owner of the timeshare holiday right is bound by the contract as long as he can benefit from the timeshare holiday right, the plaintiff, who visited the facility subject to the timeshare holiday, experienced and examined the facility, liked the facility and signed the contract, defended that it was unfair and malicious for the plaintiff to file the present lawsuit with some untrue statements without even using the right of withdrawal with the conditions in the contract.
Court Decision
6. Bursa 1st Consumer Court’s decision dated 10.10.2013 and numbered 2013/2668 E., 2013/1304 K. dated 10.10.2013 and numbered 2013/2668 E. and 2013/1304 K.; although it was claimed by the plaintiff that he was subjected to psychological pressure and that he signed the contract for this reason, considering that no evidence was submitted in this regard, it cannot be accepted that there was a reason that crippled the will of the plaintiff at the time of signing the contract, in case the defendant does not fulfil its obligations or fails to fulfil its obligations after fulfilling its own obligations,
the plaintiff may terminate the contract for justified reasons and request a full refund of the money paid, but no evidence was submitted in this regard, the contract was signed on 05. 06.06.2005 and the lawsuit was filed on 03.04.2012, it was decided to dismiss the lawsuit on the grounds that the contract between the parties is a valid contract with ongoing legal consequences, it should be accepted that the parties have adopted the contract, and it cannot be said that the contract was suspended for approximately seven years between the date of signing and the date of filing the lawsuit.
Special Chamber Reversal Decision:
7. The plaintiff appealed against the above-mentioned decision of the Local Court within due time.
8. With the decision of the 13th Civil Chamber of the Court of Cassation dated 27.11.2014 and numbered 2014/11809 E., 2014/37825 K.; “…In the timeshare holiday contract signed between the plaintiff and the defendant, it is explained that the facility subject to the timeshare holiday is the completed facility on 323 block 145, 146 parcels and the facility whose construction is completed on 154 parcel. According to the letter of Kuşadası Municipality, which was submitted to the similar files of the facility subject to the lawsuit,
it was understood that a certificate of occupancy was issued for 323 block 154 parcel dated 25.09.2002 and numbered 189, but no certificate of occupancy was issued for 166 (former 146) and 145 parcels. As such, considering that the plaintiff is not obliged to use the holiday right in the facility that does not have a certificate of occupancy, which is not ready for use and does not meet the terms of the contract, and that there is no obligation to use the holiday right and to maintain the contract, it is necessary to decide to accept the case, while the judgement with the written evaluation is contrary to the procedure and the law, and requires a reversal…”.
Decision of Resisting:
9. With the decision dated 05.11.2015 and numbered 2015/628 E., 2015/1056 K. dated 05.11.2015 and numbered 2015/628 E., 2015/1056 K.; the plaintiff did not notify the other party that he terminated the contract within the ten-day period regulated in paragraph II of the contract, and in Article 4 of the Timeshare Holiday Use Regulation, which is an annex to the contract After stating that the defendant is a member of Interval International, which is an international exchange system, in Article 4, “…Our member can use his holiday right either in Kuşadası or in the member facilities of Interval International, provided that he applies to us in January and pays the annual maintenance fee to be paid to us… “,
that is, the defendant is not obliged to fulfil its performance in the facilities to be built on parcels 146 and 145 specified in the contract and subject to the Court of Cassation’s reversal decision, even if the facilities in question are not completed or the occupancy permit has not been obtained, the plaintiff consumer can use his holiday right in other facilities, he wants to use his holiday right, but no evidence has been presented that the defendant has not fulfilled this performance, according to the evidence collected, the defendant’s default cannot be mentioned, on the contrary; although seven years have passed since the signing of the contract,
the defendant has not made any notice of termination and has created a belief in the defendant seller that he has adopted the contract, although the plaintiff has no claim that the defendant has not fulfilled its performance and after remaining silent for a long time, at the end of seven years, he claims that he signed the contract under pressure and that he was not given the opportunity to read the contract, and that his request for the termination of the contract and the return of the price he paid with interest is also contrary to the rules of good faith and good faith, even if otherwise accepted; the court’s principle of being brought by the parties regulated in Article 25/1 of the Code of Civil Procedure (CCP) No. 6100.
In accordance with the principle of being brought by the parties regulated in Article 25/1 of the Code of Civil Procedure (CCP) No. 6100, it is not possible for the court to take into account whether the facility, which the plaintiff has never put forward and has not expressed at any stage of the proceedings, has a building use permit or to make a research in this direction.
Appeal of the Resistence Decision:
10. The decision of resisting was appealed by the plaintiff’s attorney within the time limit.
II. DISPUTE
11. The dispute before the General Assembly of Civil Chambers by way of resistance is whether the conditions for the termination of the timeshare holiday contract have occurred in the concrete case, as well as whether the court can take into consideration ex officio the issue of whether there is a certificate of occupancy of the facility, which was not put forward by the plaintiff.
III. REASON
12. In the solution of the dispute, it is useful to briefly mention the legal nature of timeshare holiday contracts.
13. “Timeshare holiday systems”, which are called “Timeshare” in the world tourism sector and which have shown a significant increase in recent years and constitute a dynamic area of the tourism sector at national and international level, are mostly applied in our country in the form of “timeshare contracts”, which are subject to strict conditions (form, nature of the immovable, etc.), which provide the owner with a right in rem, and “timeshare holiday contracts”, which are more easily implemented than timeshare contracts, but which give rise to only personal rights.
14. While timeshare holiday contracts were not included in our legislation before 06.03.2003, for this reason, in practice, they are mainly considered as atypical,
mixed contracts and generally explained as an unnamed mixed contract that provides a personal right to benefit from a certain transfer for a certain period of time every year during the contract period and imposes mutual obligations on the parties; With the Law No. 4822, which entered into force on the specified date, it has reached its legal definition in the regulation added as subparagraph (B) to Article 6 of the Law No. 4077 on the Protection of Consumers.
15. Accordingly, timeshare holiday agreements are “a written agreement or group of agreements made for a period of at least three years, which includes the transfer or commitment to transfer the right to use one or more immovable properties for a period of at least one week during the year, which may be determined or determined, and a copy of which must be given to the consumer.”
16. In the concrete dispute, a timeshare holiday contract was signed between the parties granting the right of use for ninety-nine years.
17. The plaintiff filed a lawsuit stating that he never used the facility subject to the contract, that he later realised that the conditions of the contract were different from those explained to him during the promotion phase, and therefore he wanted to withdraw from the contract. The Special Chamber, on the other hand, reversed the judgement on the grounds that the lawsuit should be accepted by focusing on a fact that was not asserted in the case at hand. Since the decision to resist was made by stating that the reversal was contrary to the principle of bringing by the parties, it would be appropriate to first emphasise this principle and then discuss the fact subject to the reversal through the concrete case.
18. Article 25 of the Code of Civil Procedure No. 6100 (CCP) states the principle of being brought by the parties as follows
“(1) Except for the exceptions stipulated in the law, the judge may not take into account spontaneously the facts or facts not stated by either party and may not even act in a manner that may remind them.
(2) Except in the cases provided by law, the judge may not collect evidence sua sponte.”
19. As a consequence of this principle, the court may only examine the facts pleaded by the parties. As a rule, this includes the evidence (Art. 25/2). The judge may request the parties to submit evidence in order to clarify the case, but cannot remind the party of a certain evidence. On the other hand, in cases where the principle of ex officio investigation is applied, the judge shall apply to all evidence necessary to prove the case, and the parties may present evidence until the end of the hearing. In the simplest terms, this principle, which can be defined as the duty of the judge as well as the parties in the preparation of the facts related to the case, is called the principle of ex officio investigation and is important in contentious cases and non-contentious judicial affairs that concern public order.
20. As a matter of fact, in its decision of reversal,
the Special Chamber relied on the grounds that it was revealed that there was no certificate of occupancy permit in many files that passed through the appellate review regarding the facility subject to the contract, and that the plaintiff was not obliged to use the holiday right in the facility that did not have a certificate of occupancy, therefore was not ready for use, did not meet the terms of the contract, and did not have the obligation to maintain the contract.
21. At this stage, the legal nature of the certificate of occupancy should be emphasised.
22. The certificate of occupancy permit, also commonly known as “occupancy”, is a permit obtained from the municipality or the special provincial administration affiliated to the governorship, which issued the construction licence, for the use of these parts of a completed building when the parts that can be used in whole or in part are completed. The said permission is regulated in Article 30 of the Zoning Law No. 3194. According to this article, “If the building is completely completed, it is obligatory to obtain permission from the municipality or governorate (…) (1) offices that issued the construction licence in order to use the whole building, and if the parts that can be used partially are completed,
it is obligatory to obtain permission from the relevant municipality or governorate in order to use these parts; in order to use the buildings that are not subject to a licence according to Article 27 in whole or in part. Upon the application of the owner, it must be determined that the building is in compliance with the licence and its annexes and that there is no objection to its use in terms of science.”
23. It is obligatory to obtain a building licence from the municipality or governorships for all buildings within the scope of the Zoning Law (with the exception of Article 26) (Article 21 of Law No. 3194). According to Article 29 of the aforementioned Law, the period for commencement of construction is two years from the date of the licence, and if the construction is not started within this period, or if the construction is started and not completed within five years for any reason whatsoever, the licence granted is deemed null and void, and in this case, it is obligatory to obtain a new licence. As a rule, making any changes in the buildings for which a licence has been obtained is also subject to obtaining a new licence.
Pursuant to Article 32 of the Zoning Law, a “building holiday report” shall be issued by the relevant administration for the building which is in violation of the licence or which has been constructed without a licence; in the event that the violation of the licence has not been corrected in the building in violation of the licence, a demolition decision shall be issued by the municipal council or the relevant administrative board and the parts in violation of the licence or the building constructed without a licence shall be demolished by the municipality or the relevant administration by collecting the costs from the building owner. In addition, Article 42 of the Zoning Law shall be applied and penal sanctions shall be imposed by the relevant administration.
24. At this point, it should be emphasised that the zoning legislation is related to public order and must be taken into consideration by the court ex officio. In accordance with the principle of social state, the State must intervene in the activities related to construction in order to ensure the public interest within the framework of principles such as public health and safety, urbanisation and effective settlement policy.
25. Since the principle of bringing by the parties cannot be mentioned in a matter of public order, there is no contradiction to the law in ex officio consideration of the claim that there is no building licence in many case files brought before the Special Chamber for appellate review regarding the withdrawal requests regarding the facility subject to the lawsuit. However, as of the scope of the file, even in its defences after the reversal decision, the defendant could not provide evidence to prove that the facility subject to timeshare has a building permit in accordance with the legislation.
26. Although the existence of an occupancy permit is more important in contracts concerning the right of ownership, it is unacceptable that the consumer is forced to keep the contract alive and to be left with ambiguity about the fate of the facility for which he paid the price during the ninety-nine-year term of the timeshare holiday contract. Providing the opportunity to benefit from other facilities within the framework of the timeshare exchange system in the contract between the parties will not change the result, since in the ordinary course of life, the consumer is in the expectation of benefiting from the facility to which he wants to be entitled first.
27. As such, while it is necessary to comply with the reversal decision of the Special Chamber, which is also adopted by the General Assembly of Civil Chambers, the decision to resist as written is contrary to the procedure and the law and requires the reversal of the judgement.
IV. CONCLUSION:
For the reasons explained;
The appeal objections of the plaintiff’s attorney are accepted and the decision to resist is reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied in accordance with the reference of the provisional Article 3 of the Code of Civil Procedure No. 6100, for the reasons shown above,
In case of request, the advance appeal fee shall be returned to the depositor,
Pursuant to Article 440 of the same Law, it was unanimously decided on 17.06.2020, within fifteen days from the notification of the decision, the way of correction of the decision being open.
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