It is a topic that comes up a lot in practice. Nowadays, we see very often that real estate sales and real estate sales promises are made over the land, as the people say, especially through projects and models. The contractor who needs financing and the customer who wants to buy real estate cheaply bring up the real estate sales contract or prepaid housing sales contract made without complying with the format rules. Although the will of the legislator is to make such contracts formally, in practice, the contractors who make such contracts frequently, without paying attention to this, make the contract in the ordinary way, even though they know the invalidity of the contract. The approach of the Court of Cassation on this matter is that such contracts are invalid, but if the contract has been implemented, has now been put into effect, if the parties have performed their actions, we should not go to the conclusion of the return of what was given due to the invalidity of the contract after this time, let’s attach the provisions and results of a valid contract to this contract. Although this explanation is somewhat unsatisfactory in terms of explaining it with the rules of law, we can consider it under the roof of the 2nd honesty rule of the MK. But other problems can arise here. There may also be rights of third parties on an immovable subject to an external immovable sales contract. In particular, a problem arises as to what will be the consequences of enforcement proceedings, liens, or mortgages on the said real estate by the banks that give credit to the contractor. The most important problem encountered in practice; When the immovable is finished, during the takeover of the deed of the immovable, the consumer sees that some liens and mortgages have been placed on the immovable after the transfer is made to him with an external sales contract in the deed. And the consumer is suing with a clean title deed request. He wants the immovable to be given to him free of mortgages and liens. We can see that the judges were in serious dilemma at that point. On the one hand, there is a dilemma about the principle of trust in the land registry, the principle of goodwill, the principle of official registries to prove one’s own body, and on the other hand, what can be done in the face of a contract that has made an external immovable sale contract but has actually been implemented.

An opinion at this point; If the contract is actually implemented, the real estate is completed and actually delivered to the consumer and the clean title deed is given to the consumer if the consumer has entered that real estate and the lien and mortgages on that real estate are placed after this time. It’s a critique. According to this view, what we call trust in the land registry is not just looking at the information written in the land registry and relying on the information there. It is not something that can be defended just by looking at the black-covered book, to be able to gain real rights in good faith or to claim that the mortgage you put is healthy, to say that no one else has superior rights on the deed in question. However, we cannot ignore the TMK 3/2 paragraph, which is the mirror rule that regulates our goodwill rule. The provision of the article states that a person who does not show the care expected from him according to the requirements of the situation cannot claim good faith. In this regard, there are heavy criticisms of the credit provider, considering the contractor as the owner. Considering that the external real estate contract, as a trust institution, is applied very often in our society, it should make a very strict examination. If you have the opportunity to determine a superior right belonging to others with non-deed elements, this research should be done seriously in accordance with the regulation arising from the bank law. Since banks have aggravated duty of care, there are cases of being able to adhere to TMK 2, the honesty rule.

In this regard, the 7th Civil Chamber of the Regional Court of Justice; If we look at MK 1023 and 1024/1, it is stated that the real right is gained in good faith by relying on the land registry, the gain is protected, and if a real right is registered illegally, the third person who needs to know this says that he or she cannot rely on this registration. In the continuation of his evaluation, he stated that he did not take his right into account in the face of 1023, since his right, which is not mentioned in the record, but the real owner, was sacrificed for the sake of maintaining peace and security and maintaining social order in the transfer of titled immovables. But here, the court states that it is important; states that the soundness of goodwill should be thoroughly investigated. He emphasizes that if the right of the real right holder is not taken into consideration just because it does not appear in the title deed in order to protect the social order, then the person who has the right in good faith should be questioned in a very healthy and meticulous manner. On the one hand, there is the person who acquires by believing in the correctness of the land registry, and on the other hand, there is the previous owner who is in danger of losing his right in rem, which has material and moral value for him.

In the continuation of the concrete case, the court established a bank mortgage, and the expertise of banks in establishing mortgages is unquestionable. Banks perform public service,

are establishments. The responsibilities of the TTK are heavier than the duty of care of the prudent merchant.

Therefore, it is essential to perform risk analysis very well. Considering that immovables are frequently sold externally in practice, it is necessary to carry out a detailed appraisal and meticulous research on the immovable to be mortgaged. This obligation has been regulated in detail in the Banking Law No. 5411 and the regulation on banks’ receiving valuation services based on this law, and the authorization and activities of institutions that will provide valuation services to banks. The court further mentioned MK.2 and MK.3. In fact, the court’s claiming that it is in good faith by citing 1023 and claiming that only the information written in the title deed binds him and asserts that he trusts the title deed and therefore the mortgage cannot be removed may cause criticism. In the face of the frequent practice of selling immovables to someone else in external sales, establishing a mortgage by giving loans without investigating the rights of the residents or questioning whether the expected rights exist, the bank, which is a prudent trader and which should have the obligation to research it carefully in the banking law, did not show the necessary care, relied only on the written information in the land registry, and For this reason, it cannot be said that he is honest and benevolent. As a natural consequence of this undertaking, the defendant bank, who is supposed to act like a prudent businessman, has assigned this immovable property, which was seen as the property of the construction company before the credit facility, and the capacity of the person residing in it is examined in all its aspects and qualities, it is determined whether there is a sales debt before the contract is signed. According to him, considering that it could not be proven in the concrete case that he had taken a commitment, determined that it was suitable for the loan by examining, and decided that it was not wrong to cancel the mortgage.

According to one view, what is meant by the implementation of the contract; In the external sales contract, the consumer has paid his money, and the contractor finishes the immovable and delivers the immovable. If thereafter a mortgage has been established, the mortgage is removed according to this view. If a mortgage was established before that, it is normal for the bank not to know that the rate was sold or transferred to someone else outside of the title deed, but it is presumption that the plaintiff can prove the opposite, and if he has made the payments through the bank that put the mortgage, he can say to the contractor, “I made it through your bank, you could have found it.” This approach of the Regional Court of Justice shows a tendency towards the removal of mortgages, especially within the framework of TMK 3. In fact, the Consumer Court has expressed an opinion that the bank should examine the contractor’s books.