General Assembly of Law 2017/1224 E. , 2021/209 K.
“Justice Text”
COURT: Magistrate’s Court
1. At the end of the trial held due to the “correction in the land registry” lawsuit between the parties, the decision regarding the acceptance of the case given by the Akşehir Magistrates Court was reversed at the end of the examination made by the 1st Civil Chamber of the Court of Cassation upon the appeal of the defendant’s attorney, and the Court resisted the decision to reverse the Special Chamber.
2. The decision to resist was appealed by the defendant’s attorney.
After the documents in the file were examined by the General Assembly of Law, the necessity was discussed:
I. TRIAL PROCESS
Plaintiff’s Claim:
4. In the petition of the plaintiff’s attorney dated 08.04.2014; He claimed that his client’s legacy, “Hafız Mehmet Oruç”, was a stakeholder in the immovable property in Akşehir District, no. 281, parcel no. He requested that it be corrected as “Hafız Mehmet”.
Response of the Defendant:
5. The attorney of the defendant requested that the case be dismissed in case it is determined that the owner and the plaintiff’s descendant are not the same person after the necessary investigation has been carried out by the court.
First Instance Court Decision:
6. With the decision of Akşehir Civil Court of Peace dated 17.06.2014 and numbered 2014/267 E., 2014/436 K.; In the land registry of the immovable parcel numbered 123, the name of the owner was written as “Mehmet Oruç, Kazım oğlu”, but there was no person with this name by the population directorate, only the name “Kazımoğlu Hafız Mehmet Oruç” was found. When examined, it was concluded that the person who was named as Kazım’s son Mehmet Oruç was Kazım’s son Hafız Mehmet Oruç, and that according to the relevant articles of the Land Registry Regulation, the application was first applied to the land registry directorate, but the application was rejected, and the case was decided to be accepted.
Special Chamber Ruling Decision:
7. Against the above-mentioned decision of the court, the defendant’s attorney filed an appeal within the time limit.
8. With the decision of the 1st Civil Chamber of the Supreme Court dated 31.03.2015 and numbered 2015/4042 E., 2015/4457 K.;
“…The lawsuit is about the request for correction of the identity information written wrongly in the land registry, and it was opened on 08.04.2014 and the court decided on the merits.
Incomplete or incorrect processing of identity information such as the name, surname, father’s name of the owner of the property right during the cadastral determination or registration of the immovables in the registry constitutes the source of the records correction requests. In such requests, while the identity information is corrected, the owner of the immovable should not change, in other words, no property transfer should be caused.
If these requests are made to the court pursuant to Article 1027 of the Turkish Civil Code (TMK) No. 4721, in accordance with Article 382/(2)-ç)-1 of the Code of Civil Procedure No. 6100, in accordance with the uncontested procedure, in the civil court of peace and regarding the same property. In accordance with Article 12 of the same Law, it is heard in the court of the place where the immovable is located.
In addition, in accordance with the last paragraph of Article 702 of the TMK, which entered into force on 01.01.2002, it is foreseen that each of the partners can ensure the protection of the rights entering the community and that all partners can benefit from this protection. may request a correction.
However, in article 28 of the new Land Registry Regulation, which was published in the Official Gazette dated 17.8.2013 and numbered 28738, which was accepted with the decision of the Council of Ministers dated 22.7.2013 and numbered 2013/5150, the name and surname of the owner in the owner column of the log page, the name of the father, the reason for the acquisition, the date and the journal number, the full titles of the legal entities and the amount of the share in the joint ownership; It has been stated that the names of the stakeholders will be shown in fractions in the part after the surname and father’s name.
In the 72nd article of the same regulation, “Changes in the land registry can be made upon the request of the right holder or the decision of the competent authority or the court”, and in the article 74, “In case it is determined that a simple typographical error has been made in the registry, journal and auxiliary registers, the principal shall give the reason for it. It will be stated in the corrections registry, that the correction will be made ex officio, the mistake or defect in the request document will be corrected, the document will be written in an appropriate place and signed by the parties and the land registry officers and the registry will be corrected accordingly, the errors or deficiencies made on the main or auxiliary registries, In the event that it arises from documents issued by the administrations, upon the application of the concerned parties based on documents proving the actual situation, the request will be recorded in the journal and the necessary correction will be made. written form of
If there is no written consent of one of the relevant persons, this situation will be stated in the declarations column, action will be taken in accordance with the provisions of the Decree-Law dated 26.9.2011 and numbered 659. It has been explained that the approval of the directorate will be sought and the directorate is obliged to notify the transactions made without the knowledge of the relevant persons.
Article 75 of the Land Registry Regulation “(1) Upon the application of the person concerned, the typographical errors in the land registry regarding the name, surname and father’s name of the owner or right holder arising from the cadastral works;
a) In the determinations without the promissory note; Identity registration sample and a photographic certificate to be obtained from the municipality or headman’s office where the immovable is located,
b) In record-based determinations; If it is determined that the request comes from the real right holder, by examining the records and documents on the basis of it, listening to witnesses and, if necessary, expert witnesses and making an examination on the ground, the request is recorded in the journal and corrected.
(2) The ground inspection will be carried out together with the technical personnel of the cadastral directorate and a technical report will be prepared as a result of the inspection, and the neighboring parcel owners, headman and other relevant persons will be heard during the ground inspection; tax registration and all other information and documents are used.
(3) The above paragraphs are also applied in updating the information in the land registry and eliminating the deficiencies.
(4) Pursuant to the provisions of this article, it is obligatory to apply to the directorates for registry corrections.
Again, according to Article 26 of the same Regulation, requests that do not comply with the legislation and the provisions of this Regulation and for which provisional registration annotation is not possible according to Article 1011 of the Law No. 4721 will be rejected without delay, by stating the justification, place and time of objection, and the refusal decision is delivered to the applicant. It is stated that it will be notified in person or in accordance with the provisions of the Notification Law dated 11.2.1959 and numbered 7201 and that the refusal decision can be appealed to the regional directorate to which the directorate is affiliated within fifteen days from the date of notification, and against the decision of the regional directorate to the General Directorate within fifteen days from the date of notification.
Considering the provisions of the new Land Registry Regulation explained above, and in particular Article 75, it is seen that the land registry directorates are given wide powers, allowing the errors in the land registry to be corrected in a shorter time by administrative means. Again, in the last paragraph of this article, “It is obligatory to apply to the directorates for registration corrections in accordance with the provisions of this article.” has a provision.
This provision does not restrict the freedom to seek rights, on the contrary, it gives the rights-seekers the opportunity to obtain their rights in a much shorter time, easily, cheaply and simply. As such, if this opportunity is primarily consumed and no result can be obtained in this way, the person concerned is obliged to apply to the court in accordance with Article 1027 of the Turkish Civil Code No. 4721.
Therefore, after 17.8.2013, when the new Land Registry Regulation entered into force after being published in the Official Gazette, the plaintiff must first apply to the relevant land registry office in accordance with the procedure described above, without applying to the court, and then apply to the court if he does not get the desired result in his request.
In this case, since a lawsuit has been filed directly without following the legal procedure that obliges to apply to the land registry directorate, in accordance with the Land Registry Regulation, it is not correct to accept the lawsuit in writing, while the decision to reject the lawsuit should be procedural…”.
Decision to Resist:
9. With the decision of Akşehir Civil Court of Peace dated 09.10.2015 and numbered 2015/260 E., 2015/620 K.; When the decision regarding the rejection of the administrative application dated 05.02.2014 by the Akşehir Land Registry Directorate submitted by the plaintiff and the entire file scope are evaluated together, the name of the registration owner was mistakenly written in the owner’s section of the immovable in question, that no person other than the registration owner has any interest or connection with the immovable, and the lawsuit filed by the plaintiff. The previous decision was resisted on the grounds that an application was made to the land registry directorate before it was opened, but the request for correction was rejected.
Appeal of the Decision to Resist:
10. The decision to resist was appealed by the defendant’s attorney within the time limit.
II. DISPUTE
11. Dispute brought before the General Assembly of Law through resistance; In the lawsuit filed on 08.04.2014 with the request of correction of the identity information of the owner in the land registry, whether an application has been made to the land registry directorate in accordance with the 4th paragraph of Article 75 of the Land Registry Regulation for the correction of the registry before the lawsuit is filed, and whether it is necessary to reject the case on a procedural basis. is being collected.
III. REASON
12. As it is known, the land registry is the registry kept under the responsibility of the State to show the status of immovables and rights on them according to the principles of registration and clarity.
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13. The new Land Registry Regulation No. 2013/5150 was published in the Official Gazette dated 17.08.2013 and numbered 28738, in order to ensure that the land registry records stipulated by the Turkish Civil Code No. 4721 (TMK) are kept regularly.
14. In the statute, the procedures and principles of registration, amendment, cancellation and correction of property rights, limited real rights and personal rights related to immovables, and archiving of records and documents are indicated; Article 28 regulates how the property right will be registered in the land registry and in the owner column of the log page, the owner’s name and surname, father’s name, reason for acquisition, date and journal number and titles of legal entities will be written in full and the amount of share in the joint ownership; It has been stated that the names of the stakeholders will be shown in fractions in the part after the surname and father’s name.
15. Incomplete or incorrect processing of identity information such as the name, surname, father’s name, gender, date of birth of the owner of the property right during the cadastral determination or registration of the immovables to the land registry constitutes the source of registration correction lawsuits. The purpose of these lawsuits regarding the correction or determination of identity information in the land registry is to harmonize the identity information of the registry owner in the land registry with the population registry.
16. According to Article 1027 of the TMK, unless the persons concerned have given their written consent, the land registry officer can only correct the mistake in the land registry with a court decision, except for simple typographical errors (ordinary typographical errors) that can be corrected ex officio in accordance with the rules of the Land Registry Regulation. In this context, in Article 74 of the Regulation, it is explained how the corrections will be made on the main or auxiliary registers and in the first paragraph of the article; In the event that it is determined that a simple typographical error has been made in the log, journal and auxiliary registers, contrary to the documents, it is foreseen that the simple typographical errors will be corrected ex officio by explaining the reason in the corrections register. Accordingly, the title deed manager can correct the ordinary typographical errors that do not affect the content of the right and are contrary to the document in the registry, without the need for any action.
17. Corrections to be made upon the application of the person concerned are in Article 75 of the Land Registry Regulation; “(1) Upon the application of the person concerned, the typographical errors in the land registry regarding the name, surname and father’s name of the owner or right holder arising from the cadastral works;
a) In the determinations without the promissory note; Identity registration sample and a photographic certificate to be obtained from the municipality or headman’s office where the immovable is located,
b) In record-based determinations; If it is determined that the request comes from the real right holder, by examining the records and documents on the basis of it, listening to witnesses and, if necessary, expert witnesses and making an examination on the ground, the request is recorded in the journal and corrected.
(2) The ground inspection will be carried out together with the technical personnel of the cadastral directorate and a technical report will be prepared as a result of the inspection, and the neighboring parcel owners, headman and other relevant persons will be heard during the ground inspection; tax registration and all other information and documents are used.
(3) The above paragraphs are also applied in updating the information in the land registry and eliminating the deficiencies.
(4) Pursuant to the provisions of this article, it is obligatory to apply to the directorates for registry corrections”; Accordingly, upon the application of the person concerned, the typographical errors regarding the name, surname and father’s name of the owner or right holder occurred during the cadastral works; Subject to the condition that it is determined that the request comes from the real right holder as a result of examining the documents specified in the article and conducting the necessary research, it is possible to correct it by the land registry officer.
18. Although this article contains a regulation similar to the 87th article of the abolished Land Registry Regulation, in the 4th paragraph of the 75th article of the new Land Registry Regulation, it is obligatory to apply to the land registry directorates for the corrections to be made in accordance with the provisions of the article.
19. On the other hand, in Article 26 of the Regulation; Requests that do not comply with the provisions of the legislation and the Bylaw and that do not allow provisional registration annotation according to Article 1011 of the TMK will be rejected without delay, by stating the reason, place and duration of objection, the rejection decision will be stated in the declarations column of the register and the decision will be handed over to the applicant or by Notification. It has been regulated that an objection will be made to the regional directorate to which the directorate is affiliated within fifteen days from the date of notification, and against the decision of the regional directorate, to the General Directorate within fifteen days from the date of notification.
20. When it comes to the concrete case within the scope of all these explanations, the lawsuit at hand was filed on 08.04.2014 with the request of correction of the name of the owner in the land registry. According to the article, his application to the relevant land registry directorate was rejected with the decision dated 05.02.2014 and The usus is written in the declarations column of the immovable that is the subject of the lawsuit. Although the administrative procedure to be followed by the person making the request in the event of a refusal decision has been shown in Article 26 of the Regulation, the plaintiff has not exhausted the means of objection.
21. In this case, it should be discussed whether the obligation to apply to the land registry directorate and the procedure for objection procedures, which are regulated in the Land Registry Regulation, are in the nature of a lawsuit or not, in terms of lawsuits filed pursuant to Article 1027 of the Turkish Civil Code and requesting the correction of typographical errors in the land registry.
22. The conditions of the case are an institution belonging to the civil procedure law, and its purpose is; It is to determine all the necessary conditions and the procedure for examining them on the merits of a case, thus helping the cases to be concluded more quickly, simply and economically.
23. Presence or absence are absolutely necessary conditions for the court to examine and decide on the merits of the case. Conditions whose existence is necessary in order to conduct an examination on the merits of the case, favorable case conditions (such as duty, legal interest); The cases where the absence is necessary are called adverse case conditions (such as final judgment).
24. The conditions of the lawsuit are the conditions necessary for the court to examine the merits of the case (to enter the merits of the case), not for filing a lawsuit. This is also called the conditions for hearing the case. A lawsuit filed without one of the conditions of the lawsuit is also considered to have been filed (existing), that is, it is pending. However, when the court finds that one of the conditions of the case is not present, it cannot examine the merits of the case; is obliged to reject the case due to the absence of litigation conditions (procedure). Because the judge automatically examines whether the conditions of the case exist or not at every stage of the case. It is also possible for the parties to assert the lack of litigation at any time. However, it is not necessary for the parties to make a request in this regard, and the judge is not bound by the demands of the parties. In addition, in some cases, it may be possible to eliminate the lack of litigation requirements. In such cases, the court has to give a definite time to complete the lack of litigation requirement. If the deficiency of the lawsuit condition is not corrected within this period, only then it rejects the lawsuit due to the absence of the lawsuit condition.
25. Although the general litigation conditions are stipulated in Article 114 of the Code of Civil Procedure No. 6100, the litigation conditions are not limited to those listed in the aforementioned article, but there may also be litigation conditions stipulated in other laws. As a matter of fact, in the second paragraph of Article 114; It is stated that the provisions regarding the conditions of the case in other laws are reserved.
26. On the other hand, in the legal order, which is a hierarchical norm system, it is undoubted that the lower level norms take their effect from the higher level norms. At the top of the hierarchy of norms, there are universal legal principles and the Constitution, later laws take effect from the Constitution, statutes take effect from law, and regulations take effect from laws and statutes. It is not possible for a norm to bring a provision that contradicts or changes a norm that is higher than itself and that forms its basis (Kuluçlu, E.: Hierarchy of Norms in the Turkish Legal System and Its Effects on the Audit of the Court of Accounts, Journal of the Court of Accounts, issue: 71, p. 21; HGK dated 23.01.2020 and 2017/4-1323 E., 2020/59 K.).
27. In the hierarchy of norms, a lower norm should not contradict the upper norm, and it should not go beyond the legal limits given to it by the upper norm. The issue of ensuring the existing hierarchy between legal norms within constitutional measures is also important for the state of law. Because if an issue that is not prohibited by the higher norm is prohibited by the lower norm, the principle of the rule of law is damaged.
28. Although the provision in Article 115 of the Constitution stating that “The Council of Ministers can issue regulations to show the implementation of the law or to specify the works it orders” has been repealed, the Bylaws that were enacted before the Constitutional amendment continue to exist. It is also clear that the regulations that come after the laws in the hierarchy of norms should not contain illegal regulations.
29. In this context, if the relevant articles of the Land Registry Regulation are evaluated, it is observed that simple identity information such as name, surname, father’s name, gender, and similar ordinary spelling errors that can be corrected by the administration in the land registry are subject to many lawsuits within the framework of Article 1027 of the TMK. In Article . However, in practice, these remedial ways are not sufficiently implemented by the land registry directorates, and the applicants are often directed to file lawsuits, resulting in unnecessary loss of time. This is the opportunity to say that it is a condition of lawsuit.
is not available. Because this issue is related to the right of access to the court; The main thing is that the right of access to the court does not remain in theory, but that individuals can use this right effectively.
30. The freedom to seek justice, which is guaranteed in Article 36 of the Constitution, is one of the most effective guarantees that ensures the necessary enjoyment and protection of other fundamental rights and freedoms as well as being a fundamental right. According to the aforementioned article, everyone has the right to a fair trial by claiming and defending as plaintiff and defendant before the judicial authorities by making use of legitimate means and means. The right of access to court is the right that allows individuals to put forward their claims and defenses before a judicial authority. Therefore, the right of access to the court is an element of the freedom to seek rights guaranteed in Article 36 of the Constitution.
31. The right of access to a court, which is one of the most fundamental elements of the right to a fair trial, means being able to bring a dispute before the court and request an effective resolution of the dispute (Özkan Şen, App. No: 2012/791, 7/11/2013, § 52) . The European Court of Human Rights (ECHR) accepts the right of effective access to the court as one of the basic elements of the principle of “rule of law” and states that the right of effective access to the court should ensure that there is a consistent system for applying to the court and that those who want to file a lawsuit have clear, practical and effective opportunities to reach the court. means it needs to have. For this reason, it is decided that this right is violated in cases where legal uncertainties or uncertainties in practice impair the parties’ access to court (Geffre v. France, App. No: 51307/99, 23/1/2003, § 34).
32. According to the 13th article of the Constitution, titled “Restriction of fundamental rights and freedoms”, fundamental rights and freedoms can only be limited by law, without affecting their essence, only depending on the reasons specified in the relevant articles of the Constitution. Therefore, restrictions that prevent a person from applying to the court can only be regulated by law. In the hierarchy of norms, a regulation that restricts the right of access to the court cannot be made with the statute that comes after the laws, and it is clearly stated in the second paragraph of Article 114 of the CPC that the provisions regarding the case conditions in other laws are reserved. For this reason, 75/4 of the Land Registry Regulation. It is not possible to dismiss the case on a procedural basis, considering that the obligation to apply to the title deed directorate in the article and, accordingly, the administrative objection process has not been completed.
33. On the other hand, although the date of the lawsuit, which is 08.04.2014, is written as 24.04.2015 in the title of the reasoned decision regarding resistance, this issue is in the nature of a material error that can always be corrected by the court.
34. As such, the decision to resist given by the local court due to the various reasons and reasons stated above is in accordance with the procedure and the law and is appropriate.
35. However, since other appeals are not examined by the Special Chamber, the file should be sent to the Special Chamber for examination.
IV. CONCLUSION:
For various reasons and reasons explained;
It is appropriate to resist, and to SEND the file to the 1st LAW OFFICE for the examination of the defendant’s attorney’s other appeals,
440/III-2 of the Code of Civil Procedure no. It was decided unanimously on 04.03.
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