Property Registration Case & Property Cancellation Case

Property Registration Case & Property Cancellation Case | Real Estate Lawyer in Izmir

These are lawsuits filed to annul a land registry registration process on the grounds that it is fraudulent, irregular, or carried out in violation of law and procedure. In land registry annulment and registration lawsuits, if the allegations are proven during the trial, the property will change hands. Therefore, it can be said that this is a remedy resorted to when the constitutional right to property is violated. Furthermore, if the desired outcome is not achieved through the lawsuit and the violation of property rights continues, even after exhausting domestic remedies, it is possible to file an individual application with the European Court of Human Rights (ECtHR).

Conditions for Filing a Lawsuit for Cancellation and Registration of Title Deed:

• Making transactions in the land registry without a valid reason,
• Registration in the name of a third party other than the owner,
• The registration of the relevant property has been changed,
• The relevant registration must have been deleted from the land registry.,
• The property right has been damaged as a result of the fraudulent registration.

The competent and authorized court in a land deed cancellation case.

In terms of authority As with all other real estate cases, lawsuits for the cancellation and registration of title deeds are filed in the location where the immovable property is situated. The court in the location of the immovable property is the sole and exclusive court with jurisdiction according to procedural law. This jurisdiction is related to public order, and the parties cannot agree to the contrary. Similarly, the judge presiding over the case is obliged to automatically verify whether the lawsuit was filed in the competent court (in the location of the immovable property). This is a prerequisite for the lawsuit, and if the lawsuit is not filed in the competent court... Code of Civil ProcedureAccording to Articles 114/1.c and 115 of the law, the court must immediately dismiss the case on procedural grounds.

GöIn terms of revLawsuits for the cancellation and registration of title deeds are filed in the civil court of first instance where the immovable property is located. In other words, the competent court is the civil court of first instance. For a lawsuit for the cancellation and registration of title deeds, the petition must be complete and accurate. The property's registration information, all legally irregular circumstances, and evidence must be clearly stated. Expert opinions, witness testimonies, and on-site inspection evidence must be relied upon, and the petition must clearly specify which points in this evidence require investigation. Every fact and piece of evidence to be relied upon must be included in the lawsuit petition.

Why is it necessary to file a lawsuit for the cancellation and registration of a title deed?

Below, we will list some situations that may give rise to the right to cancel and re-register a title deed, and explain a few of them with examples:

• It can be filed due to lack of legal capacity.,
• In cases of fraudulent transfer of property by the deceased, a lawsuit can be filed to request the annulment of the transaction. (Fraudulent transfer is when parties make an agreement between themselves that does not reflect their true intentions and is not legally binding on them, with the aim of deceiving third parties. Fraudulent transfer of property by the deceased is commonly known as evading inheritance. A lawsuit for the annulment and registration of title deeds filed due to fraudulent transfer of property by the deceased is a lawsuit where the deceased transferred real estate before death with the intention of depriving their heirs of their inheritance rights, and the heirs demand the correction of the fraudulent registration. In a lawsuit for the annulment and registration of title deeds filed due to fraudulent transfer of property by the deceased, it must be proven that the deceased made the transfer with the intention of depriving their heir of their inheritance rights. The claim of fraud can be proven with any kind of evidence, such as whether the deceased transferred the real estate for any consideration or whether there was a secret agreement between them.)
• It can be opened due to the misuse of power of attorney given to the person.,
• A lawsuit can be filed to annul a contract for lifelong care, deeming it invalid.,
•  It can be opened due to reasons arising from zoning law.,
• A lawsuit for the cancellation of a title deed can be filed due to a dispute over the family home. (A family home is a dwelling used jointly by family members. Without the consent of the spouse not registered as the owner of the family home, the other spouse cannot sell or mortgage the family home. Since transactions made without consent have no legal validity, the registration will be invalid. If the family home is sold without the explicit consent of one spouse, the other spouse can file a lawsuit for the cancellation and re-registration of the title deed due to the invalid registration.)
• Boundary disputes can be brought due to excesses or deficiencies in the amount that cannot be resolved through a lawsuit for correction of the land registry record.,
• It can be opened due to fraudulent registration.,
• Cadastral surveys can be opened due to errors in cadastral measurements or incorrect registrations, based on reasons that existed before the cadastral survey.,
• Due to the Coastal Law, the Forestry Law, or other legislation, requests for the cancellation of the registration of lands that cannot be registered as private property in the land registry in the name of individuals may be filed by the treasury or the relevant administrations.,
• A lawsuit can be filed on the grounds that a title deed registered in someone else's name without a deed does not reflect the true situation.,

To whom should the lawsuit be filed?

In winning land registry cancellation and registration cases, proof is crucial. Therefore, if it is alleged that the registration in question is fraudulent, it is essential to prove this claim. For example, if a person requests the correction of a fraudulent registration due to a fraudulent transaction by the deceased, the plaintiff is obligated to prove the fraudulent transaction.

Registration lawsuits are filed against the treasury and the relevant public legal entity, and if applicable, against the heirs of the person appearing as the owner in the land registry. Defendants and objectors may request a registration decision in their own names within the same lawsuit. In land registration lawsuits filed due to extraordinary prescription, attention should be paid to whom the lawsuit is directed and the statute of limitations. Land registration lawsuits filed due to extraordinary prescription must be filed jointly against the relevant legal entity and the treasury.TMK (Article 713/3). For example, a person who has held undisputed and continuous possession of a property within the boundaries of a village for 20 years as its owner must file a lawsuit for the cancellation and registration of the title deed against both the village legal entity and the treasury.

In another example, if a lawsuit for the cancellation and registration of a title deed is filed due to collusion, and the property has changed hands several times, the lawsuit can be filed against all previous and current owners, even if the ownership was for a short period. If the owner has passed away, the lawsuit for the cancellation and registration of the title deed can be filed against the deceased's heirs. If the aim of these lawsuits is to eliminate a real or personal right belonging to a third party, a separate lawsuit must be filed against the right holder listed in the title deed.

Provisional Injunction in a Title Deed Cancellation and Registration Case

İhtiyati tedbir kararı, mahkemeye başvuru esnasında davacının hukuki olarak koruma istediği, adından da anlaşıldığı üzere tedbir alınması gerektiğini belirten bir korumadır. İhtiyati tedbir kararı dava süresi boyunca geçerli olan bir koruma olup hukuki talebinin dava süresi boyunca koruma altına alınmasıdır. Tapu iptali ve tescil davasında ihtiyati tedbir kararı, davaya konu olan taşınmaza ilişkin üçüncü kişilere satılmaması amacıyla tapuda satışın durdurulması, şerh konulması olarak istenebilmektedir. İhtiyati tedbir kararının verilmesi adına mahkeme tarafından teminat yatırılması istenebilmektedir. Davalı kişinin üzerine kayıtlı olan taşınmaz adına ihtiyati tedbir kararının verilmesi halinde aleyhine sonuçlar doğurması ihtimali mevcuttur. Bu nedenle mahkeme tarafından dava dilekçesinde belirtilen dava değeri üzerinden yaklaşık %15 oranında teminat yatırılması istenilmektedir. Mahkeme tarafından teminat yatırılmasına ilişkin karar vermesi şart değildir; ancak davada kesin bir delil bulunmuyor ise teminat alınması yönünde karar alabilir.

Relevant Supreme Court Decisions:

• In lawsuits for the cancellation and registration of title deeds based on fraudulent transactions by the deceased, the legal issue to be resolved is determining whether the testator acted with the intention of defrauding the heirs of their property. When distributing their inheritance, the testator may make reasonable differences in proportions that can be tolerated. In a lawsuit for the cancellation and registration of title deeds based on fraudulent transactions by the deceased, whether the testator made equalization and whether the distribution of property was equitable is determined using the following criteria (Supreme Court 1st Civil Chamber - Decision: 2016/5445).

• Neither spouse may transfer the immovable property that constitutes the family home to a third party or establish limited real rights such as mortgages in favor of a third party on the immovable property without the "explicit consent" of the other spouse (Article 194/1 of the Civil Code), (Supreme Court of Appeals - 2015/1201 decision).

• The court ruled in favor of the plaintiff, accepting the claim on the grounds that the non-party, ..., lacked legal capacity on the date of the power of attorney and the date of the sale, that the defendant's acquisition constituted fraudulent registration, and that the defendant could not benefit from the principle of good faith. (Supreme Court 1st Civil Chamber - Supreme Court 2017/245E, 2020/763K.)

Land title cancellation and registration lawsuits are a type of lawsuit that changes real estate ownership and carries significant economic risks for the parties involved. Additionally, all necessary legal protections must be sought from the drafting of the lawsuit petition to the follow-up of the process, and all evidence must be presented completely. Therefore, these real estate lawsuits should always be handled through a lawyer. For more information, please contact us. Contact page.

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