İzale-i̇ şuyu (dismination of partnership) case

The right to request sharing may be limited for a maximum of 10 years by an agreement made by the parties. This contract is called maintenance-i shuyu. In order for the contract to be valid, it must be made officially. The contract to be made regarding real estate can be annotated in the land registry.

In some cases, jointly owned property may be dedicated to a specific purpose. For example, there may be a family residence annotation on the real estate. This annotation prevents the dissolution of the partnership. An exemplary Supreme Court decision on the subject established the following provision:

"The plaintiff's attorney claimed in the petition that the parties are stakeholders in the independent section numbered 8 and that the partnership should be resolved through sale. The defendant's attorney defended the rejection of the case by stating that the immovable property in question is the family residence and there is an annotation regarding this in the land registry. In accordance with Article 194 of the Turkish Civil Code, one of the spouses cannot transfer the family residence or limit the rights on the family residence unless there is the express consent of the other spouse. According to the same law. According to Article 698, unless there is an obligation to maintain shared ownership in accordance with a legal transaction or because the shared property is dedicated to a permanent purpose, the right to request sharing can be limited to a maximum of ten years. Contracts regarding the continuation of shared ownership in immovable properties are subject to official form and a request for sharing cannot be made at an inappropriate time. In the concrete case; "It is understood that the annotation "family residence" was added to the description section of the title deed record of the independent section numbered 1/2 on 08.01.2008, and that it was registered in the name of the parties with 1/2 share. In this case, it must be accepted that the immovable property is dedicated to a certain purpose. It is not possible to request the elimination of the partnership unless this annotation on the title deed record is deleted. In this case, the court decided to reject the case, but it was not deemed appropriate to accept it in writing. Y6HD.2010/4406 K.

According to the 14th Civil Chamber of the Supreme Court of Appeals, the actual division of the real estate does not prevent the division. The relevant decision is as follows:

"There is no legal regulation stating that each of the stakeholders may request the sharing of the jointly owned property and that the actual division of the real estate would prevent this request, and the decision is clearly contrary to the legal legislation regulating the elimination of the shareholding. Since the plaintiff is a stakeholder in the real estate subject to the case, it should have been decided to eliminate the shareholding, but it was not deemed appropriate to make a decision contrary to the clear provision of the Law, and the decision had to be reversed for the reasons explained." 2017/9388 K.

According to the Supreme Court HGK; An inappropriate time is a time when division is detrimental to stakeholders. Undoubtedly, the inappropriate time should be determined according to the rules of honesty.

For example, when a construction is about to start, it can be said that the requested partition will not comply with the rule of honesty.

In immovable properties subject to condominium ownership, division of the main immovable property cannot be requested. (KMK Article 7)

In cases where ownership is in dispute, a lawsuit for dissolution of partnership cannot be requested. In cases that have been filed, this situation is made a pending matter. A Supreme Court decision on the subject is as follows:

"The case is about the request to eliminate the partnership by converting the ownership of shared real estate with a building on it into a condominium, or selling it if it is not available. Considering that the ownership of the building on the common real estate in question is in contention among the stakeholders, the lawsuits that have been filed and will be filed to resolve this dispute should be considered as a "suspension issue" and the outcome should be waited for, and a decision should be made according to the result that will occur after the ownership conflict is resolved. "It is wrong to decide to eliminate the partnership by selling it together with the land and share the sale price among the stakeholders in proportion to the land shares." Y18HD 2003/1370 K.

EXACTLY TAKSIM IN İZALE-İ ŞÜYU CASE

TMK's 399/2. According to the article; If agreement cannot be reached in the form of sharing, upon the request of one of the stakeholders, the judge decides to divide the property exactly as it is, and if the values ​​of the divided parts do not match each other, to equalize by adding money to the missing piece.

Exactly, division only comes to the fore in cases where the nature of the goods is suitable for this division. In case of a demand, the judge first examines whether the property is suitable for division as is. For this purpose, an expert report is obtained and it is asked whether it is possible to distribute the same to the necessary places. In an exemplary Supreme Court decision, the following provision was made:

"Although it was decided to reject the case in terms of these immovable properties, citing the justification that the partnership on the immovable properties in question could be resolved by partition as is, the parties requested that the partnership on these immovable properties be resolved by partition as is, and since it was understood in the expert reports submitted after the on-site survey that it was stated that it was possible to resolve the partnership on the said immovable properties by division in accordance with the Zoning Law, the court ordered the technical expert to prepare a subdivision project for these immovable properties. "The Municipal Council, which is the approval authority, should then ask the approval authority whether the same division is possible according to this project and make a decision on this issue and make a decision based on the result, but it was not deemed right to make a decision based on incomplete examination and erroneous justification, and the decision to reject the case had to be overturned." Y14HD. 2020/5450 K.

LISTING THE PARTNERSHIP THROUGH SALE

TMK's 699/3. According to the article; If the division request is not deemed appropriate for the circumstances and conditions, and especially if it is not possible to divide the shared property without suffering a significant loss of value, it is decided to sell it by auction.

Deciding to make the sale by auction between stakeholders depends on the consent of all stakeholders.

The sales transaction is carried out by the sales officer or the enforcement office.

In order to proceed with the sales process, the decision must be final.

Before the sale, a report showing the value appreciation of the goods is prepared. Then the sale announcement must be made.

The tender is made by auction. In order for the sale to be made between the partners, the consent of all partners is required. Otherwise, the auction bid will be open to everyone.

Apart from this, the relevant provisions of the EBL shall apply to sales transactions.

The sales request period is 10 years.

<4>IN WHICH COURT CAN THE İZALE-İ ŞUYU (DISOLITATION OF PARTNERSHIP) CASE BE FILED?

The court responsible for hearing the case of dissolution of partnership is the Civil Court of Peace.

If the property for which the partnership is sought to be eliminated is not moved, the lawsuit is filed in the court where the real estate is located.

Simple trial procedure is applied in the case of dissolving the partnership. The parties do not have the right to submit a second response petition.

All partners who are parties to the case are responsible for the litigation expenses.

If the parties are represented by an attorney, it is decided to pay mutual attorney fees.

DETERMINATION OF BELONGING OF MUHDESAT IN İZALE-İ ŞÜYU CASE

In the case of dissolving the partnership, one or more of the parties may claim imposition. In case of such a claim, the court first gives the party making the claim time to file a lawsuit to determine the ownership of the property. Determination of the belonging of muhdesat The details of this issue are mentioned in our article. It should be noted here that determining the ownership of the contents helps to determine who owns the trees planted and the structures built on an immovable structure. The following explanations were included in a Supreme Court decision on the subject:

"In case the shareholding (partnership) is resolved through sale, if there are integral parts (impositions) such as buildings, trees, etc. on the immovable property subject to the lawsuit, these must be sold together with the supply. However, if there is an annotation in the title deed that the property belongs to some stakeholders (partners) or if all stakeholders agree on this issue and the property creates an increase in the value of the supply, in order to determine this increase, the supply and the property as of the date of the case must be sold. The values are determined separately. The entire value of the real estate is calculated by adding up the total value. The percentage (%) is determined as to how much of this value corresponds to the property. The portion corresponding to the property is distributed to the shareholders (partners) in proportion to their shares.

In the concrete case; The defendant claimed that the buildings on the subject property belonged to his heir, H.K. In this case, if the claim is not accepted by asking the other parties, the defendant's attorney should be given time to file a lawsuit to determine the ownership of the assets, and if it is accepted, a decision should be made by determining the contents ratio of the structures claimed to belong to. However, it was not deemed appropriate to make a written decision based on incomplete examination and research, and for this reason, the decision had to be reversed." Y14HD. 2017/8829 K.