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MUHDESAT ALLEGED IN THE ACTION TO DISCONTINUE THE PARTNERSHIP

What is Muhdesat?

Muhdesat, in its simplest definition, is a building on an immovable that belongs to someone else. This structure can be a building or a tree.

The Claim of Muhdesat in the Case for Dissolution of the Partnership

The claim of conversion is a claim that can be put forward either in the case of dissolution of the partnership or in the cases of expropriation. The case for dissolution of the partnership, also known as the dissolution case, is the case for the dissolution of the partnership on the immovable owned by joint or joint ownership by means of sale, although it is not possible to divide it exactly. In this case, each of the owners can claim that the structure on the immovable belongs to him, that is, he can claim muhdesat.

If one of the parties, that is, the owners, makes a claim, the judge first asks the other parties whether they accept this claim. If the parties accept the contention claim, there will be no problem and a judgment will be established by the Court, assuming that the structure belongs to the party claiming the conversion. However, if even one of the parties does not accept the claim of inclusion, the Court will give the party claiming a definite period of time to file a lawsuit for the determination of the ownership of the content. If a property belonging case is filed within the given period, this case will be a pending matter in terms of the case for the dissolution of the partnership. In other words, in order for the case for the dissolution of the partnership to be decided, the case of belonging to the muhdesat will be expected to be concluded. If the case for ownership of the property is not filed within the given time, the court will continue the case for the dissolution of the partnership as if there is no claim for muhdesat.

What is the Case for Determination of the Belonging of the Muhdesat?

As we have mentioned above, if the other parties do not accept the claim of annexation, the party claiming the annexation has to file a case for the determination of the ownership of the property in order to establish that the structure on the immovable belongs to him. The Court of Cassation accepts that there is a legal benefit in filing a lawsuit for the determination of the ownership of the property, even if it is an illegal structure.

The Court in Charge and Competent in the Case of Determination of the Belonging of the Muhdesa

The court responsible for the determination of the ownership of the property is the Civil Court of First Instance; The competent court is the court of the place where the real estate is located.

Against Who is the Case for Determination of the Belonging of the Muhdesat and Who is the Burden of Proof?

The case for the determination of the ownership of the property is filed against the persons who appear as the owner of the immovable on which the property is located in the title deed and who do not accept the claim of muhdesat. The burden of proof is on the plaintiff, who alleges the contention. The Court of Cassation emphasizes that it is necessary to determine the detailed issues about who made the Muhdesat, with what income, on whose behalf and account, when and in what way. For this reason, the evidence and witnesses to be presented by the plaintiff are of great importance.

The Effect of the Case for Determination of the Belonging of the Inventory on the Case for Dissolution of the Partnership

If it is decided to determine the ownership of the property, the property will be registered in the name of the right owner in the title deed and at the end of the lawsuit for the dissolution of the partnership, the right of the owner of the building will be determined separately.

In case the partnership (partnership) is dissolved through sale, building, tree, etc. If there are complementary parts (muhdesat) such as these, they must be sold together with the supply. However, if there is an annotation in the deed that the content belongs to some stakeholders (partners), or if all stakeholders agree on this issue and if the content creates an increase in the value of the supply, the values ​​of the supply and the content are determined separately as of the date of the lawsuit in order to determine this increase. These values ​​are added together to find the entire value of the real estate. How much of this value corresponds to the supply and how much to the material is determined by establishing a percentage (%…) ratio. The division of the price to be obtained at the end of the sale is made on the basis of these ratios. The portion corresponding to the deduction is distributed to the beneficiary stakeholder, and the remaining amount is distributed to the stakeholders (partners) in proportion to their shares. (2017/2296 E., 2019/2496 K and 20.03.2019 T. of the 14th Law Office of the Supreme Court)

Av. ÖZNUR YEŞİLNACAR

TO CONTACT NOW: 0 541 485 92 48