The real right is an absolute right that gives the person dominance over the goods and can be asserted against everyone. The appearance of real rights with the outside world is basically explained in two ways in our law. These are legal institutions called possession and registry. Land registry is of vital importance for immovables in the establishment and transfer of real rights. Basic immovables in our law specified in m.704 of our civil code; The land consists of independent and permanent rights recorded on a separate page in the land registry, and independent sections registered in the condominium registry.
For immovables, the reason for envisaging a state-held registry such as the land registry is the territory of the country we are looking at. It is important for the unity of the country. For this reason, it is not a question of possession, but a more robust registry, such as the land registry, which is kept by the state. The principle that a separate page should be opened for each immovable has been introduced while keeping the land registry. And on this page, it is possible to see information about the basic legal and actual situations related to that real estate very easily. But at this point, it should be noted that the land registry is now kept together in 2 different ways. On the one hand, there is a transition to the electronic land registry and there is a land registry kept electronically. On the one hand, it consists of many documents and books, which we call the title deed registry and the condominium registry. A very basic principle in terms of immovables is the registration principle. The concept of registration principle; It is accepted that registration is necessary for the emergence, change or termination of a real right on an immovable property. The registration has a constituent character. It is not possible to establish and transfer real rights without registration. Exceptional cases of this; It is an acquisition through a universal succession as in unregistered acquisition situations and inheritance. But if we leave these exceptions aside, registration is our very basic principle, which has a constitutive nature. At this point, we need to make a distinction at this point, such as transferring a real right on an immovable or establishing a real right on an immovable, usufruct, right of superficies, mortgage. The first of these stages consists of the commitment process and the second consists of the savings process. There is a cause-effect relationship between these two processes, in accordance with the principle of illicitness. When the commit operation is invalid, it will be invalid even if the save operation is done.
Contracts that result in a transfer of ownership are in the nature of debtor commitment transactions. On the other hand, the acquisition of the right in rem and the transactions resulting from its transfer are in the nature of savings. In this legal reason, a commitment transaction usually appears as a contract. But rather, this legal reason is the contract of sale, if we want to realize the contract, that is, the sale. But the conclusion of the sales contract is not enough to pass on the right in rem. Because the sales contract is only a debiting transaction. After that, savings must be made. In order for the property right to pass to the other party, the owner must request registration and the registration must be carried out on the land registry by the title deed manager or officer. Today, the officer in the land registry is to sign the immovable contract and to have it signed by the owner by writing the registration request on the bottom line from the mouth of the owner. It is so synchronous that it is not possible for us to make a contingent immovable sale contract.
In the meantime, a pre-contract has been created in order to fill the gap. This is a real estate sales contract. It is possible for this contract to become valid by making the preliminary contract of sale of the immovable in the form of a notary arrangement. The immovable preliminary contract of sale does not provide the opportunity to directly request registration. The preliminary contract of sale of immovable is a contract that gives the opportunity to demand the conclusion of the sale contract. Unfortunately, since it is not known in our society, when a promise of sale contract is made at the notary public, the impression is created that the ownership of that real estate is taken. In fact, in our country, the real estate is delivered only as a result of the preliminary sales contract. Even if he takes possession, the person does not actually become the owner because the right of ownership is not passed with this contract. When we look at the situation before the regulation brought by the law on judges and prosecutors brought on 23.06.2022 and the law on amending some laws,
Article 26 of the land registry law gives the authority to make real estate sales contracts to the land registry directorates. The real estate premise contract is executed by notary public pursuant to article 60 of the notary public law. Until this change, the immovable sales contract and the immovable sales contract are at the land registry office as the transaction that the notary public’s office can do. If we look at how it is done in German law, in Switzerland, where we got our land registry system, it received this system from the German. Germany is the country where real estate transactions are made most regularly. It has been seen that contracts for establishing or transferring real rights on immovables in Germany are now made by a notary public.
we are looking for The parties are going to the notary public, if you are going to make an immovable sale contract or establish another real right in Germany, it is essential to act with a lawyer. As you can see, we are faced with a very protected system. The notary public communicates with the land registry directorate when the parties arrive, receives all information electronically through this system, examines the limited real rights, annotations and records on that real estate, and gives this information to the people in front of the notary public. We see that the notary has a very high responsibility here. Afterwards, the notaries begin to perform the transaction quickly after giving the information they see online. The notary public first receives requests from the parties with written documents. Then it does this. It forwards all transactions to the tax offices. Tax evasion is not possible with this system. If there is a problem over the price of the real estate, a notary public has an evaluation process. Money transfer is done through a notary public. We see that it is a very smooth and orderly process. Here, the official form of the contract is the notary public. Saving is done at the land registry office. The notary is making the commitment. As a result of this commitment process, it receives the owner’s registration request and forwards it to the land registry office. It is registered at the land registry office. All these transactions are done in a very secure way. Since the price is paid to the other party through a notary public, there is no problem.
When we look at the Law on Judges and Prosecutors, which was approved by the parliament on 23.06.2022 and published in the Official Gazette on 28.06.2022, and the law on the amendment of some laws, which has yet to be implemented on July 1, 2023, we see that even the name of the law has nothing to do with notaries, but it brings very serious changes. As of 01.01.2023, which is fundamental for us, it brings the principle that real estate sales transactions can now be made by notaries, in addition to the land registry directorates. With this arrangement, among the powers of notaries; The right to make a preliminary contract for the sale of immovable and, if one of the parties demands this contract, and pays the fees and expenses, to annotate the land registry through the land registry information system, to conclude a contract for the sale of immovable has been added. Here, the notary public should issue an application document upon the application for sale of the real estate, and take into account all aspects of the real estate. This will be established with a serious communication system between the general directorate of land registry and cadastre and notaries. Land registry sample and other documents will be shared with notaries through the land registry information system by the General Directorate of Land Registry and Cadastre. By looking at the documents obtained at the notary public, he must inform the parties whether there is a legal situation that prevents the sale of that real estate, whether there is any other annotation on it, or whether there is another right in rem. Then, according to the suitability, the real estate sales contract will be made by a notary public. The notary public will receive the journal number from the land registry information system as soon as the sales contract is signed by the parties. At this point, it is considered that the notary public’s receipt of a journal number replaces the registration request. However, it is the owner who will request registration, the registration request must come out of the owner. After all these are done, the right holder for the title deed registration sample and other documents will be determined and the notary will carry out these transactions. It is not possible for the parties to collect any other price other than the title deed fee and the fee to be paid to the notary public for this transaction. It should be underlined that if people prefer to do this at the notary public, they will pay the title deed fee in any case at the title deed directorate and they will pay the notary expenses other than that. The important point brought to Article 162 of the Notary Law; Notaries have strict responsibilities for their actions. The reason why we authorize notaries to issue real estate sales contracts; It may be that everyone thinks the promise of sale of immovable is a contract of sale of immovable and that we should fix this situation in the society, or another reason, both legally and economically, may be the idea of making the sale of immovables at the correct value. Currently, as a result of the improvements in the land registry, especially in recent years, a system that works really fast and after the transition to electronic land registry, we can easily perform transactions related to real estate all over the country. This new system needs to be installed properly. If we pay attention, while we can make a real estate sale contract at a notary public, we can also do it at the land registry office, this can be extremely confusing. If we are passing it to notaries, we must pass the system in its entirety. Indeed, we should establish a more accurate system in which the price of the immovable is determined correctly and the transfer of the price is notarized. Opposite
Otherwise, it can be thought that this partial system will do more harm than good.
TMK’s regulation on shared ownership
compatibility with the model on which it is based
In our new civil law, the shared property regime has acted with a very different understanding than the old civil law. When we examine the direction of the law in our legal system on sole proprietorship or joint ownership; When we examine whether the idea of the law essentially considers sole proprietorship, does not accept joint property as a normal regime and does not wish its continuity, if the provisions brought about joint property are of a nature that will constantly lead to the emergence of disputes, if no special measures are foreseen for the settlement of disputes that may arise between the stakeholders. Therefore, the law does not consider shared ownership as an ordinary regime if stakeholders are encouraged to ensure that the partnership is resolved as soon as possible. We can say that the law wishes to get out of the shared ownership regime as soon as possible. If we look at the shared ownership provisions of our old civil code, we come across an image that allows us to say that the former legislators did not see the shared ownership as an ordinary regime. In fact, we see that the former legislator is a sole proprietorship. In the case of joint ownership at the time of the old civil law, we see that the agreements made between the stakeholders regarding the use of the property subject to the joint ownership and the utilization of this property, the use and utilization scheme created with these contracts are not binding for those who are later stakeholders. The new stakeholders could say that we are not a party to the agreements regarding use and utilization made before us, and since we are not a party, we cannot have any commitment. Again, if a decision cannot be taken regarding the management of the partnership at the time of the old civil law, we see that the possibility of taking a decision from the judge by going to the judge is not foreseen by the law. In the old law, the last remedy that could be done at that time was to eliminate the partnership. The old civil law had the attitude that if this does not work, the partnership should be eliminated, the ownership of one person should be passed, the only way out seems to be the elimination of the partnership. The doctrine and practice of the old civil law turned its back on the undesirable attitude of the regime to shared property. The new civil law has taken a completely different approach on this issue. In the understanding adopted by the new civil law, we cannot say that the sole proprietorship in the shared ownership approach is the sole proprietorship, and shared ownership is a deviation from the ordinary. On the contrary, we see that the new civil law designed the shared property as if it were a legal entity. It is such an order that if you are involved in shared ownership as a shareholder, it is said that there are rules, know that and be ready. TMK 695 clearly states that the arrangements made by the stakeholders in matters related to utilization and management will also bind those who are later stakeholders.
If there is a situation where a decision cannot be taken regarding the administration, this blockage has opened the way to be overcome by applying to the judge. The judge emphasized that the decisions will also bind those who are later stakeholders. In fact, the right of one of the stakeholders to apply to a judge is regulated as an inalienable right. The way to permanently eliminate even the new civil law preemption right has been shown. In order to ensure the continuation of the shared ownership union for a certain period of time, it has been made possible to bind the shareholders after the agreements that abolish the right to demand the elimination of the partnership. Yen emphasizes that in the civil law, unlike the Swiss original, the decisions taken by the stakeholders on the issues related to the use and management of immovables should be annotated to the land registry in order to bind the stakeholders later on. However, there is no such obligation for movables. In Switzerland, immovables are self-binding.
Rights of those who do not agree with the majority decision in urban transformation
When the Law No. 6306 on the conversion of areas under disaster risk comes into force, how will the people who do not agree with the decision and who have justified reasons for not participating in the decision in terms of 3/2 majority land share, how will they provide legal protection. In the process we have lived for 10 years after the law came into force, we witnessed that the minority shareholders were sold for very low prices by abusing the 3/2 majority right. As a very important example; In Kadıköy Suadiye, the building, which consists of a part of a residence and a part of a workplace, was determined as a risky structure. The contractor, who took over the 3/2 majority of this building, wanted to force other stakeholders into an agreement, saying that he would demolish this building, and did not specify that he would neither build nor give shares to the other stakeholders other than 3/2. He had stated that he would turn this place into a business center, and the construction costs would be covered for 13 years, and that he would not give a share from the income. It was said that if the business center starts to make a profit after 13 years, it will start giving shares to the stakeholders. An application was made to the Provincial Directorate of Environment and Urbanization by those who did not agree with the decision of this agreement.
It was said that I am not authorized to examine the content of the contract. It is the Civil Courts of First Instance that will do this, and decided to sell the shares of the stakeholders who did not participate in the agreement.
Citizens filed a lawsuit in the Civil Court of First Instance demanding the annulment of this decision and the cancellation or adaptation of the contract. The process continued as the civil court of first instance did not issue an injunction decision. The shares of these citizens were sold by the Provincial Directorate of Environment through tender. Then, a lawsuit was filed in the Administrative Court for the annulment of this tender. The court rejected it. Fortunately, by entering the content of the contract, the 6th Division of the District Administrative Court stated that the content of the contract violated the rights of the stakeholders and that the contract was not equitable and the District Administrative Court abolished this decision. Apart from that, the Constitutional Court gave a very important violation of rights regarding the rights of the stakeholders who did not participate in the agreement. It was published in the official gazette on March 9. The decision has emerged to shed light on how the owners whose rights are violated and who do not participate in the agreement should act. In the incident that came to the Constitutional Court, the citizens had 4 workplaces and 1 residential independent section, these were on the upper floors. It was said by the contractor that I will not give a workplace, I will only give an independent section of residential quality, they will be on the -1 floor. Here, these stakeholders, whose rights have been violated, first filed a lawsuit in the Civil Court of First Instance with a precautionary request. First, the Civil Court of First Instance decided to stop the execution of the provisions of the contract in return for a price. However, after 2-3 months, he said that there would be no irreparable damage, and he lifted the interim injunction in return for the defendants to deposit collateral. There was no longer any obstacle to the sale of these shares. After this measure was lifted, the Administrative Court decided to sell the shares. This time, the stakeholders filed an action for annulment at the Administrative Court for the annulment of the sale decision made by the administration. The administrative court denied these requests. He stated that it was the Civil Court of First Instance that would oversee the content of the contract. This decision was upheld by the Regional Administrative Court. And citizens’ shares were sold by the administration. As a last resort, the Constitutional Court found the first decision of the Civil Court of First Instance extremely appropriate and found the interim injunction decision correct. However, it later decided that the decision of the Civil Court of First Instance to lift the measure was extremely erroneous. As the constitutional court administrative court, you shouldn’t have just made a formal audit, you should have entered the content of the contract. He decided that the Administrative Court was responsible for this, saying that if necessary, you should have made an expert examination by discovery, that everyone can be given an independent section in their own solid position, and if these people’s places are in the nature of a workplace, if there are independent sections that have the characteristics of a workplace in the new project, you should give them. Therefore, after this Constitutional Court decision, both the Civil Courts of First Instance and the Administrative Courts issue decisions of stay of execution and interim stay.
As a result, in the light of the decision of the Constitutional Court, those who actually want to join this type of contract now state that the applicants do not object to its annulment by the Constitutional Court, that they accept all the terms of the contract, but that they want to stay on the floor and in my position. The Constitutional Court says that the Administrative Court should examine in terms of cost. He states that he should not only fulfill the tender conditions, but also examine the sales price, that it is not enough just to comply with the pre-bid conditions, that the price and the tender must be duly made.
