I. What is Immovable Property/Real Property in Turkey?
In order to have information about title deed cancellation and registration cases, the following things should be known first; Immovable property (real property) is defined as immovable, not movable, non-portable, which cannot be taken from one place to another.
As a legal term, real property is expressed as land, substantive and permanent rights recorded on a separate page in the land registry, independent sections registered in the condominium registry.
As it can be understood from these definitions; land, dominion, field, apartment and similar things are immovable properties.
II. How to Acquire, Obtain Real Property in Turkey?
Acquisition of immovable property, is acquired by registration as a rule (The first paragraph of Article 705 of the Turkish Civil Code). The term mentioned as registration is the registration in the name of the owner in the records of the Directorate of Land Registry where the immovable property is registered.
Exceptionally, real property can also be acquired by inheritance, court decision, forced execution, occupation, expropriation and other cases regulated by law. Even in these cases, registration in the “Land Registry” is required in order for the immvable owner to dispose of the immovable property.
The ways of acquiring real property are; legal action (contract; sale, promise, donation, lifelong support, inheritance, etc.), occupation, formation of new land.
Since it is written in the petitions and court orders as “… cancellation of the title deed registration … and its registration in the name of …“; The lawsuits for the annulment of the registration of the immovable property and the request for its registration in the name of the owner are called “Title Deed Cancellation And Registration Lawsuits”.
According to Article 716 of the Turkish Civil Code; “The person who has a personal right regarding request of being recorded ownership into his or her own name from the owner by relying on a legal cause to be a basis to acquisition of ownership, may demand from judge the ownership to be transferred by desicion, in case the owner has avoided.”
Article 1025 of the Turkish Civil Code states; “If a limited property right is registered illegally or a registration is canceled or changed illegally, the person whose limited property right is damaged because of this can sue for the correction of the land registry.”
By operation of law; the real owner, whose immovable property should be in his/her own name, can file a lawsuit against whom the immovable property is registered in the land registry, to remove the name of the owner from the land registry of the real property, to write his/her own name, thereby registering that he/she is the owner of the real property. However, in order to file the lawsuit, it is necessary to rely on a legal ground that will be the basis for acquiring the property”.
The legal reasons that are be the basis for the acquisition of property are not considered limited in the law. Therefore, it is possible to interpret the legal reasons broadly. The most common legal reasons in title deed cancellation and registration cases are; “Construction agreement in return for land share or flat”, “Abuse of power of attorney” “Collusion of the testator” “Preliminary contract for real property sale” “Assignment agreement with fiduciary” “Legal incompetence” “Prescription and possession”, “Title deed allocation document“.
III. Process in Title Deed Cancellation And Registration Lawsuits under Turkish Law
First of all, we should point out that; Regardless of the reason, the follow-up of all title deed cancellation and registration cases requires technical and professional knowledge. In the follo-up these cases, we recommend that you seek support from l awyers or law firms that provide legal services in this regard.
1. Confirmation of Real Estate Information
The first issue to be investigated in the process of cancellation and registration of title deed cases will be the correct determination of the information in the land registry of the immovable property that will be the subject of the lawsuit. Since there are principles of loyalty by request and being brought by the parties in civil cases, knowing the title deed registration of the immovable property that is the subject of the case incorrectly will cause you to lose your case from the very beginning.
2. Correct Identification of the Party or Parties
The second important issue in the litigation process will be the correct determination of whom the lawsuit will be filed against. It is important that the defendant is the current owner registered in the land registry. However, according to the cause of the case, the party which the case will be directed may also be the person who abused the power of attorney, the owner of the olds registration etc.
3. Accurate Determination of Litigation Value
The third issue that also reveals your risk in the title deed cancellation and registration case is the case value. In unquantified debt cases, the value of the case does not need to be clearly stated at the time of filing the case. However, it is seen that the courts have decided to write the case value according to the municipal current values, and to pay a guarantee over this value in the matter of provisional injunction. You will have to pay a fee according to the amount of shares you want to annul and the value of the real property. Pursuant to Article 27 of the Act of Fees; other judicial proceedings will not be continued without paying the fee. In addition, since the case is subject to a relative fee, in case the case is lost; three-quarters of the unpaid decision and verdict fees, and the attorney’s fee, if any, must be paid according to the attorney’s minimum fee schedule. Since the appeal fee is also subject to a relative fee, losing the case may cause a great financial burden.
4. Investigation and Confirmation of Evidence
In title deed cancellation and registration cases, the issues that need to be proven according to the cause of the lawsuit will also change. For example, in the title deed cancellation and registration case based on testamentary collusion, the intent of the legator to abduct property and the fact of collusion must be proven. It is possible to call witnesses to prove these claims. In the deed cancellation and registration case based on the fiduciary assignment, the existence of the ordinary written contract that reveals the fiduciary assignment is required. In the case of deed cancellation and registration based on the preliminary contract for immovable sales, a promise of sale contract made at the land registry or notary is required. It is possible to multiply examples. As it is understood, it is necessary to prepare the proof tools and evidences related to the issues that need to be proved in the case before the trial.
At the time of the lawsuit is filed; it is very important to confirm that the subject real property is still registered in the land registry in the name of the defendant registration owner. If for any reason the immovable property has handover, the case will be dismissed due to the absence of hostility as the case is not filed with the right person.
5. Complete and Accurate Statement of Demands
In cases of cancellation and registration of title deeds, it is important to make a demand for compensation by making a gradual demand as much as possible. Because, if the title deed cancellation and registration request is not considered proper for any reason, at least, the case may continue in terms of compensation based on a legal ground.
The indispensable rule in title deed cancellation and registration cases is; is to take a interlocutory injunction to prevent the conveyance of the real property to the third parties during the lawsuit. In the title deed cancellation and registration case where the request for an interlocutory injunction has not been made; since the defendant’s right to dispose of the immovable property will remain, in the event of the transfer of the immovable property, the case will be devoid of essence.
6. Checking Timeout and Forfeiture Periods
Another point to be considered before resorting to a lawsuit is the correct opening of the case in terms of time. The two terms that should be expressed as legal terms are “statute of limitations ” and “period of limitation of rights”. However, depending on the cause of the case, the defendant may also have a personal right of appeal, such as a “defense of non-payment”. These issues also need to be evaluated.
7. Correct Determination of the Competent and Competent Court
As a rule, pending place of lawsuit is the Civil Court of First Instance where the real property is located. In the litigation process there will be; exchange of petitions (mutual submission of petitions), preliminary examination, investigation (estimation, expert examination, hearing of witnesses will be at this stage), oral proceeding and judgment phases. Before the petition is prepared; accurate assessments should be made about the topics covered. However, every case is unique. In other words, since the parties, lawyers and cases of each lawsuit are different from each other; their dynamics and strategy also proceed differently.
In title deed cancellation and registration cases, whether you are a party to the plaintiff or the defendant; your risk is quite high. The risk of losing part or all of the real property is already a major problem. However, since the litigation expenses and solicitor’s fee are calculated over the case value, a large amount of material damage may occur due to the case.
Because of these two reasons, it is very important for you to get legal support from lawyers who provide legal services in title deed cancellation and registration cases.
Do you need legal assistance regarding Title Deed Cancellation And Registration Cases? Clear your doubts.
BAL Law Firm lawyers provide legal services in all disputes within the field of real estate law. We offer our clients the fastest, least costly and effective litigation service in title deed cancellation and registration cases that need to be opened or filed for any reason.
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