I. GENERAL EVALUATION

One of the most common problems regarding immovable property today is that the inherited immovables are not known/identified by the new owners, the new owner is registered in the land registry or the said immovables are completely forgotten by the owners, and these immovables are used and evaluated by third parties for many years, with or without permission. .

In our country, such situations are frequently encountered especially in crowded families, in immovables that are forgotten after the death of the elders of the family or that the lower generations are not even aware of. The real estate registered on the deceased elder is not known by the heirs, or even if it is known, it is forgotten or left idle after a while. These immovables are generally used/evaluated by the local people living in the region with the permission of the owners or completely without permission (using the immovable as a house, using the land as a field, etc.).

4721 p. A special provision is included in Article 713 of the Turkish Civil Code. This article, titled extraordinary statute of limitations, provides that under certain conditions and conditions, a person who has been in possession of an immovable for 20 years or more uninterruptedly, as the owner, can acquire the right of ownership of the said immovable.

II. VALIDITY CONDITIONS

In order to benefit from the right mentioned in article 713 above, certain conditions must be met. Pursuant to paragraph 1 of the relevant article, in order to benefit from these rights, it is necessary to “hold an immovable that is not registered in the land registry for twenty years without a lawsuit and uninterruptedly, and as an owner”. Therefore, in order to benefit from the right specified in paragraph 1, there must be an immovable that is not registered in the land registry and the person concerned must keep this immovable for at least 20 years without a lawsuit and uninterruptedly, as an owner.

Pursuant to paragraph 2, “under the same conditions, the possession of all or a part of the immovable that is registered in the name of a person whose owner cannot be identified from the land registry or for whom a decision of absenteeism has been given twenty years ago, is also the ownership of the whole, a part or a share of that immovable. may request the registration of the right to the land registry. At this point, it should be emphasized that some provisions in the first regulation of the aforementioned paragraph 2 were canceled with the decision of the Constitutional Court no. 2009/58 E. With this annulment decision of the Constitutional Court, significant changes have occurred in the extraordinary statute of limitations, especially after 22.11.2001, and this issue is explained in detail below.

III. ANNOUNCEMENT OF THE CONSTITUTIONAL COURT

As stated above, some provisions in the first regulation of paragraph 2 were annulled with the decision of the Constitutional Court dated 22.11.2001, and the full text of the said paragraph 2 before this cancellation decision is as follows:

” Under the same conditions, the possession of the whole or a part of the immovable that is registered in the name of a person whose owner cannot be identified from the land registry or who has died twenty years ago, or for whom a decision of absenteeism has been issued, is also transferred to the land registry of the entire, part or a share of the immovable. may request a decision on its registration .”

As can be seen, while the first regulation of paragraph 2 includes the phrase “a person who died twenty years ago or for whom a decision of absenteeism was made”, the Constitutional Court's decision numbered 2009/58 E. “da” has been removed. In its decision, the Constitutional Court makes the following statement regarding the annulment of the said phrase:In the event that the owner of an immovable registered in the title deed dies, the owner of this immovable is his heirs. The heirs acquire the right of ownership on this immovable upon the death of the inheritor without the need for registration in accordance with the law.

One of the general principles of law is the “timeless” nature of the property right, in other words, the fact that the property right does not run out of time. For this reason, the fact that the rights granted to the heirs of an immovable property by the Civil Code have not been exercised by the right holders for twenty years, even if it shows that those persons have actually cut the relationship with the immovable, it does not mean that the legal relationship between them and that immovable property has ended. The continuing property right of the heirs includes the right to actually use the immovable as well as the right not to use it.”

As can be understood from the aforementioned decision of the Constitutional Court, the Court unilaterally abolished the property right of the heirs on the immovable registered in the name of the deceased within the scope of the extraordinary statute of limitations, as it is contrary to the property right guaranteed in the Constitution and also violates the principles of vested rights and legal security. therefore, it canceled the said phrase and removed it from the text of the article.

IV. IMPLEMENTATION AFTER THE ANNOUNCEMENT DECISION OF THE CONSTITUTIONAL COURT

As explained above, with the annulment decision of the Constitutional Court, it was decided that “…the execution of the decision will be suspended until the day it will be published in the Official Gazette”, and then, following the announcement in the Official Gazette, the said provision was annulled and removed from the text of the article. Therefore, it should be concluded that an extraordinary statute of limitations lawsuit cannot be filed based on death after 17.03.2011. In other words, in terms of lawsuits filed before 17.03.2011, when the decision to stay in force was given, if the owner died 20 years ago and the 20-year winning period has expired from that date to the date of the lawsuit or the date of transfer of the title deed on behalf of the registry owner, in addition to other winning conditions. In terms of lawsuits, the acknowledgment of the acquired right and therefore the acceptance of these lawsuits will be required.

However, no lawsuit was filed before 17.03.2011, when the said stay of execution decision was made, and it is debatable how the implementation should be in cases where all the conditions, including the 20-year period specified in the text of the relevant article, are fulfilled before 17.03.2011. In other words, no lawsuit was filed before 17.03.2011, but; What will be the effect of the aforementioned annulment decision of the Constitutional Court, if the winning conditions were met for the benefit of the right holders, the owner died 20 years ago and the 20-year winning period has expired before 17.03.2011, which is the date of the stay of enforcement decision of the Constitutional Court?

The basis of this discussion is the principle of vested rights guaranteed in the Constitution and the non-retroactivity of the decisions of the Constitutional Court. In this context, according to an opinion, if the conditions to win for the benefit of the right holders have been met before 17.03.2011, even if no lawsuit has been filed, the right in question should be deemed to have been acquired and since the decisions of the Constitutional Court will not give effect retrospectively, these lawsuits should be accepted in line with the vested right principle (Court of Appeals).

There are also various decisions that support this view). According to another view, it is argued that these cases should not be accepted, based on the reasons given by the Constitutional Court in its annulment decision. In the annulment decision of the Constitutional Court, Article 575 of the Constitution states that “inheritance will be opened with the death of the legator, and according to the provision of Article 599, the heirs, with the death of the inheritance as a whole, in accordance with the law” and “705. In accordance with the second paragraph of the article, it is stated that the heirs will have the right of ownership on the immovables left by the inheritor “before registration”.

According to the second opinion stated in this context, the rights of the heirs, which are guaranteed by the Constitution, should be considered as the main vested right, and all lawsuits filed after 17.03.2011 should be rejected for this reason.

V. CONCLUSION

The acquisition of immovable property through the extraordinary statute of limitations, which is frequently applied in our country, has been amended with the annulment decision of the Constitutional Court on 17.03.2011 and has caused some discussions in practice.

Although the acquisition of property was prevented through extraordinary statute of limitations due to death after the annulment decision, different opinions have been put forward regarding the effect of this annulment decision in cases where the said 20-year period has expired before the annulment decision. According to the prevailing opinion and adopted by the Supreme Court, if the conditions for winning for the benefit of the right holders have been met before 17.03.2011, even if no lawsuit has been filed,

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.