Subject: Consequences of the mortgage on the whole of the real estate, the division of the land or the establishment of floor easement or direct condominium on the land
Our concept preferences will be conveyed in order to use the concepts correctly. Real estate pledge includes mortgages, mortgaged debt notes and revenue bonds (TCC Art. 850). Due to the current lack of usability of mortgaged debt notes and revenue bonds, it has been determined that it would be more appropriate to use the concept of mortgage rather than the real estate pledge, which is the upper title. The relevant legal articles should also be read through the term “mortgage”.
First of all, it should be noted that; The pledge of more than one immovable property for the same debt depends on whether the immovable properties belong to the same owner or to the owners who are severally responsible for the debt.
Article 889 of the Turkish Civil Code, titled Division of immovable property (division according to Zoning Law), states: “In case of transfer of a part of the mortgaged immovable property or one of the mortgaged immovable properties belonging to the same owner to another person or division of the mortgaged immovable property, unless there is an agreement to the contrary, the mortgaged immovable properties will be reassigned by the land registry office in proportion to their values.” You are distributed.” It is in the form. During the eMK period, the relevant provision is “to be distributed proportionally according to its own value” and there is not much difference in the content of the new law text and the old law text. Article 60 of the Land Registry Regulation states: “In the division of immovable properties, lien rights are transferred to all new immovable properties in the same way.” It is in the form. The TST provision is clearly contrary to the law.
TMK Article 889 actually gives authority to the land registry office regarding the transfer in proportion to the values of two separate lands to be determined individually as a result of division. What needs to happen in this regard is to determine the value of both lands for distribution in proportion to the values of the land registry office (according to the property tax value). In this regard, it is a fact that can never be defended in the rule of law that the land registry offices, using the difficulty that has arisen as an excuse, develop a provision contrary to the law with the first sentence of Article 60 of the Regulation. In this regard, if a person who is in financial difficulty and has to transfer a land as a result of division faces negative consequences in the land registry office in accordance with Article 60 of the Regulation, the relevant officers will be faced with the Law No. 4483 on the Trial of Civil Servants and Other Public Officials due to the “crime of willful abuse of office”. will come.
The rights of the mortgage creditor after the division are protected under Article 889 of the Turkish Civil Code. The relevant provision states: “The creditor who does not accept this distribution may request the payment of the receivable within one year from the debtor by giving a written notification within one month starting from the notification that the distribution has become final.” It is in the form.
The mortgage creditor is also protected after the transition to condominium ownership. The authority to file a lawsuit for land share correction is normally granted only to flat owners; Exceptionally, the transfer of the independent section is also given to the mortgage creditor who does not consent to the disposition authority of the owner who established the transfer of the independent section with the land share.
In this regard, it should be accepted that the property owner, as a preliminary issue, filed a lawsuit for correction of the land share in the distribution of independent sections in proportion to the land share values, and that the action of the land registry office in this direction has a legal benefit in establishing a transaction based on the finalization of the court decision. However, based on TMK Article 889/2, it must be accepted that the mortgage creditor has the right to demand the payment of the receivable within one year, starting from the notification that the distribution in proportion to the land shares has been finalized, which is a more functional method in terms of protecting the legal interests of the mortgage creditor.
Hunting. Rumeysa EROĞLU
Bibliography: Current Issues of Civil Law, 2013
