DESCRIPTION:
It is a type of lawsuit filed for the correction of the immovable property before the courts as a result of an unlawful registration of the immovable property to the title deed.
The deed annulment action is not subject to the principle of limited number in the law, therefore, the decisions of the Court of Cassation are important in this regard.
In order to talk about the Deed Cancellation case, we first need to talk about the concept of Corrupt Registration.
CORRUPT REGISTRATION:
Pursuant to Article 705 of the TMK;
Immovable property is acquired through registration. In cases of inheritance, court decision, forceful execution, occupation, expropriation and other cases stipulated by law, ownership is acquired before registration. However, in these cases, the owner's ability to perform disposition transactions depends on the registration of the ownership in the land registry.
In Turkish Law, the principle of causality (causality) is taken as a basis for title deed registrations.
The registration to be made must be valid and justified.
Wrongful Registration is clearly stated in Article 1024/2 of the TMK.
A registration which is based on a non-binding legal transaction or which lacks legal grounds is invalid.
Incorrect registration; It may be due to the defect in the constituent elements of the registration, or it may exist at the time of registration, or it may be due to unlawful amendment or abandonment.
Incorrect registration will not affect the title of real right holder.
Improper registration will result in a mismatch between the actual right ownership and the formal right ownership.
If the record in the land registry does not reflect the truth, it has only a formal value and the purpose expected from the land registry will be lost.
As a result of improper registration, a Land Registry Cancellation and Registration Case will be brought to the agenda in order to transform the title deed record, which is stated to have been improperly issued, back into its correct form.
It is important to note that the case in question is directly related to the right to property. The right to property is the broadest real right. It can be asserted against everyone. For this reason; unless a final judgment is rendered by the Court, the enforcement provisions will not be applicable.
AGAINST WHOM A DEED CANCELLATION AND REGISTRATION CASE IS FILED:
It can be filed against the person who owns the relevant immovable property in the land registry.
If the person whose name is on the register is deceased, then it will be opened to his/her heirs.
However, in addition to this lawsuit, if real or personal rights are defined on the title deed in favor of third parties, for example; if the right to reside, sales promise agreement, purchase, pre-emption, etc. rights are also requested to be canceled, a lawsuit should also be filed for these persons.
COMPETENT AND AUTHORIZED COURT IN DEED CANCELLATION AND REGISTRATION CASES:
As in all real estate lawsuits, this type of lawsuit will be filed in the court where the real estate is located. It is the court with absolute jurisdiction. Even if the parties have agreed otherwise, they cannot decide otherwise. The competent court will be the Civil Court of First Instance.
The judge must supervise ex officio. If the relevant lawsuit is not filed before the competent and authorized court, the lawsuit will be dismissed procedurally pursuant to Article 114-115 of the CCP.
ON WHICH ISSUES CAN A LAND DEED CANCELLATION AND REGISTRATION CASE BE FILED?
- Legal Incapacity
- Due to Disabilities of Will (Mistake, Fraud, Intimidation)
- Muris Collusion
- Due to Abuse of Fiduciary Duty
- Due to Forged Power of Attorney
- Due to Erroneous Cadastral Transactions
- Based on Preemption Right
- Based on Family Residence
- Reasons Arising from Zoning Law
- Due to Border Disputes
STATUTE OF LIMITATIONS IN TITLE DEED CANCELLATION AND REGISTRATION CASES:
The Legislator has not stipulated any time limit for this lawsuit. Therefore, there is no statute of limitations or forfeiture period.
However, the legislator has provided a period of 1 year for lawsuits to be filed as a result of will injuries.
IN CASES WHERE THE IMMOVABLE PROPERTY IS TRANSFERRED TO A THIRD PARTY:
The concept of good faith will come into play here.
If the transferee 3rd party is in good faith: TMK Art. 1023 “A third party who acquires ownership or another right in rem based on the registration in the land registry in good faith shall be protected.”
Pursuant to this regulation, the acquisition of the 3rd person in good faith will be protected. A Land Registry Cancellation-Registration lawsuit cannot be filed against these persons.
If the transferee 3rd party is not in good faith: If the person here knows or is in a position to know that the registration appearing in the title deed is corrupt, these persons are considered to be in bad faith. The acquisition of these persons will not be protected and the registration will be corrupt. A deed cancellation and registration lawsuit can be filed against these persons.
CAN AN INJUNCTION BE REQUESTED DURING THE LITIGATION PHASE:
No change is requested to be made to the immovable property during the relevant lawsuit process. However, it may be requested to put an annotation not to carry out transactions such as sale to third parties. The court usually accepts the interim injunction by depositing a 15% collateral instead of accepting it directly.
HOW LONG DOES A DEED CANCELLATION AND REGISTRATION CASE TAKE?
The average duration set by the Ministry of Justice is 2-2.5 years.