Case to determine the belonging of muhdesat

Although there are regulations in various provisions of the Turkish Civil Code that are useful for determining the concept of inclusion, there is no clear statement about what the concept of inclusion is. Additionally, the concept of imposition is not used in the law. In Article 19 of the Cadastre Law, this concept is used but not clarified. The relevant article states: "If there is a property belonging to a person other than the owner or one of the stakeholders on the immovable property, its owner, type, date of creation and reason for acquisition are stated and shown in the declarations section of the minutes and register." Expressions were used. In the justification of the article, the content is; "Muhdesat are things that are not temporary, such as buildings and trees." It is defined as . These definitions are incomplete in defining the concept of muhdesat.

For this reason, what should be understood in the concept of muhdesat has been tried to be resolved in practice. The following expressions were used in the decision of the General Assembly of the Supreme Court of Appeals for Unification of Jurisprudence dated 22.11.1995:

"It is undisputed that building a building or planting trees on an immovable property should be considered as immovable property. There is no dispute when the immovable property must be an integral part, that is, an integral part of the immovable property."

According to the conclusion of the relevant decision, the content is; It is defined as permanent structures and facilities on a land and trees planted as vineyards and gardens.

CONDITIONS OF THE CASE FOR DETERMINATION OF BELONGING OF MUHDESAT

• The case for determining the ownership of the property It is a type of case that comes to the agenda during urban transformation processes. Apart from these cases, there is no possibility of filing a lawsuit.
• A lawsuit to determine the ownership of property can only be filed in respect of immovable properties.
• In order for the lawsuit to be filed, the permanent structure, facilities or vineyards on the real estate must have been built or planted by a person other than the owner of the real estate.
• The items that are not integral parts but can always be removed from the main property and separated from the property are also accessories. A lawsuit cannot be filed regarding items of this nature. If the conditions are present, the provisions of unjust enrichment can be applied. While subsequent manufacturing of an existing resource cannot be considered as creating a new resource, the expenses incurred for this purpose are among the useful and necessary expenses that add value to the existing resource.

The following expressions were used in the Supreme Court decisions regarding this type of case:

"A person who owns a thing also owns the integral parts of that thing (TMK article 684/1, no. 4721). Ownership on the land includes the air above and the earth layers below, to the extent that it is beneficial to use it. Structures, plants and resources are also included in this scope of ownership, without prejudice to legal limitations (TMK article 718). Also in the Supreme Court Unification Decision No. 1/3 dated 22.12.1995. As emphasized, in Property Law, it is necessary to understand the meaning of creation as structures and facilities on a land, as well as trees planted in the form of vineyards and gardens.

Constitution does not grant its owner an independent ownership or limited real right separate from land ownership. The right of the owner of the property is only a personal right (TMK articles 722, 724 and 729). It cannot be said that the assets that are integral parts of the real estate, such as buildings and trees, have a separate ownership from the supply of the real estate. According to the explained principles and principles, as a rule, it cannot be requested to determine whether the assets belong to anyone other than the owner of the supply.

However; In accordance with the rule that there is little in many, it should be accepted that the request to determine the ownership of the invention also includes the determination of the creator of the invention. In such cases filed with the request for the determination of the content, if there is a current legal interest and the claim is proven, a decision must be made to determine that the content was created by the plaintiff."

AGAINST WHOM CAN THE CASE FOR DETERMINATION OF THE FAIRNESS OF THE MUHDESAT BE FILED?

The lawsuit to determine the ownership of the property is filed jointly against all the owners of the real estate registered in the title deed. Otherwise, it is necessary to mention the lack of a lawsuit requirement.

The following distinction must be made here. If there are those who appear as owners in the land registry and who clearly accept that the property belongs to the plaintiff, they do not need to be listed as defendants. However, it should not be forgotten that open acceptance is required here.

If a claim of imposition is made during the Izale-i Shuyu case, the procedure to be followed is stated as follows in the decision of the 14th HD Court of Appeals No. 2021/3946 K.:

"In cases regarding the settlement of the shareholding (partnership) by sale, if there is a dispute as to who owns the integral parts (muhdesat) such as buildings, trees, etc. on the immovable property, and some stakeholders (partners) claim rights over them and want this dispute to be resolved first, that stakeholder must be given an appropriate period of time in accordance with Article 165 of the Code of Civil Procedure to file a lawsuit in the competent court. If the lawsuit is filed within the period given by the court, the outcome will be determined. If it is not filed, the case should be continued as if there is no dispute on that issue.

In this case, the court must first determine the declarations of all parties as to whether they accept the claim of containment, give a suitable period of time to the plaintiff's attorney who claims to be converted, in accordance with Article 165 of the Code of Civil Procedure, in order to file a lawsuit regarding the ownership of the ownership, if there is a dispute about the ownership of the ownership, wait for the outcome if it is filed, wait for all parties to accept the claim of ownership, or wait for the lawsuit regarding the ownership of the ownership. If it is decided that the property belongs to the plaintiff; Considering the principles explained above, by obtaining a report from an expert, determining how much of the sales price corresponds to the property by establishing a percentage ratio, distributing the part corresponding to the property to the shareholder who owns the property, and distributing the remaining amount to the stakeholders in proportion to their shares, and clearly indicating the distribution rates in the judgment;

IN WHICH COURT CAN THE CASE FOR DETERMINATION OF THE BELONGING OF THE MUHDESAT BE FILED?

As we stated above, the determination of the ownership of the property only depends on the existence of an immovable property. The court in which the lawsuits regarding the same of the immovable property will be filed is determined in accordance with the special jurisdiction rules set out in Article 12 of the Code of Civil Procedure. Accordingly, this lawsuit can be filed in the court where the real estate is located.

As for the court in charge, general rules of duty should be followed. In this case, this case will be heard by the Civil Courts of First Instance.

FEES, TRIAL EXPENSES AND ATTORNEYS' FEES IN THE CASE TO DETERMINE THE BELONGING OF THE MUHDESAT

"As it is known, in the cases of determination of the property, the subject of the case (müddeabih) is the value of the property (excluding the ground price) corresponding to the shares of the defendants who do not accept the claim of the content, and accordingly, the relative decision and judgment fee determined as a result of the trial, as well as the trial expense in accordance with Article 326/2 of the Code of Civil Procedure No. 6100, and the attorney's fee assessed for the benefit of the plaintiff. The defendants must be held responsible, taking into account their shares in the title deed.

This being the case, while the fees and trial expenses should be calculated on the basis of the case value explained above and the defendants should be held responsible for these calculated amounts by taking into account their shares in the title deed, it would not be correct to calculate the fees and trial expenses on the basis of the entire property in question and not collect these amounts from the defendants in proportion to their shares. Y8HD. 2021/4323 K.

The decision given in the case of determining the ownership of the property cannot be put into execution before it becomes final.