As a rule, ownership of immovable property is acquired through registration to the title deed. According to Article 1024 of the TMK, a registration that is based on a non-binding legal transaction or has no legal grounds is a fraudulent registration. Wrongful registration occurs when a person who is not actually the right holder appears to be the right holder in the title deed. Wrongful registration may occur in such ways as the person who performs the transaction does not have the capacity to act, the attorney exceeds the limits of his/her authority, the transaction is made without complying with the form requirement, and the parties intend to mislead third parties by performing a transaction that they do not actually want to do. However, in this case, since the transaction is invalid, the owner of the right in rem does not actually change, only the owner of the right that appears on the title deed changes.
The real right owner and the persons who appear to be the right owner with corrupt registration can apply to the land registry by mutual agreement and correct the corrupt registration. If an irregular registration has occurred due to simple clerical mistakes made by the land registry officer, this error can be corrected ex officio. However, if an incorrect registration has occurred due to another mistake, the land registry officer's correction of the mistake depends on the written consent of the parties. In addition, people who have lost their rights due to fraudulent registration may file a deed cancellation and registration lawsuit for the correction of the land registry. Our lawyers specialized in real estate law in Kozyatağı, Maltepe, Kartal regions carefully carry out the legal process required for the elimination of corrupt registration.
The following transactions and situations can be given as examples to the cases where a deed cancellation and registration lawsuit can be filed:
- Muris collusion: Fraudulent transactions made by the heir for the purpose of evading property from the heirs are called muris collusion. The heirs may file a deed cancellation and registration lawsuit due to the transfer of the immovable property owned by the heir to third parties in collusion.
- Incapacity: The person who makes a transaction in the land registry must have the capacity to act during this transaction. In the meantime, the lack of the person's capacity to act makes the transaction unlawful and a deed cancellation and registration lawsuit can be filed against the transaction in the land registry.
- Acquiring prescription: As a rule, the ownership of an immovable registered in the land registry cannot be acquired by prescription. However, if the owner of the immovable cannot be determined from the title deed or if the owner of the immovable was declared absent 20 years ago, the person who has been in possession of the immovable for 20 years without a lawsuit and without interruption may file a deed cancellation and registration lawsuit to register the immovable in his name.
- Misuse of power of attorney: The attorney must look out for the interests of the attorney and perform his/her duty within the framework of the authority given to him/her. In the event that the attorney exceeds the limits of his/her duty, a deed cancellation and registration lawsuit may be filed in order to eliminate the wrongful registration.
- Family residence: The place where the spouses and children live together and which is the center of the family is considered as the family residence. As a rule, the family residence cannot be transferred to third parties without the explicit consent of one of the spouses or limited real rights cannot be established on the family residence in favor of third parties. In order to benefit from this protection, the Turkish Civil Code regulates the institution of "family residence annotation". In the event that there is a family residence annotation on the immovable property, the real right established for the benefit of a third party without the explicit consent of the other spouse can be eliminated through a deed cancellation and registration lawsuit.
- Right of pre-emption : Pursuant to Article 732 of the TCC, if one of the parties sells his/her share to a third party in immovable properties subject to shared ownership, the other shareholders may exercise their right of pre-emption. The right of pre-emption can only be exercised through a lawsuit. The party wishing to exercise the right of pre-emption must file a deed cancellation and registration lawsuit against the buyer who appears as the owner in the title deed.
- Zoning applications: Persons who have suffered damages due to unlawful zoning transactions carried out by municipalities may also remedy this unlawfulness through a deed cancellation and registration lawsuit.
PARTIES TO THE ACTION FOR CANCELLATION AND REGISTRATION OF TITLE DEED
According to Article 1025 of the TCC, if a right in rem has been registered incorrectly, the person whose right in rem has been damaged may file a lawsuit for the rectification of the land registry.
The defendant is the person who appears as the owner of the immovable in the title deed due to the wrongful registration. If the immovable property is in the joint ownership of more than one person, the lawsuit should be filed against everyone who appears as the owner. If the person who appears as the owner in the title deed is deceased, the title deed cancellation and registration lawsuit must be filed against his/her heirs. Party formation can be an important problem in prolonging the litigation process. For this reason, it will be beneficial to work with lawyers who are experts in the field of real estate law in order for the litigation process to proceed as quickly as possible. Our lawyers in Istanbul Kozyatağı, Maltepe, Kartal are ready to be with you in this process.
Article 1024 of the TCC introduces a provision that protects bona fide third parties in cases of corrupt registration. According to the Article, persons who know or should have known that the right in rem has been registered corruptly cannot rely on the corrupt registration. The person whose right in rem is damaged due to the corrupt registration may only assert that the registration is corrupt against third parties who are not in good faith. In other words, if a bona fide third party, who does not know and cannot know that the registration in the land registry is corrupt, has acquired a right in rem by relying on the land registry, this acquisition will be protected.
STATUTE OF LIMITATIONS IN TITLE DEED CANCELLATION AND REGISTRATION CASE
The title deed cancellation and registration lawsuit is an institution that protects real rights and real rights are not subject to statute of limitations. Therefore, there is no statute of limitations for the filing of a deed cancellation and registration lawsuit. However, there are some exceptions to this rule. For example, filing a deed cancellation and registration lawsuit due to cadastral determination is subject to a 10-year statute of limitations. For this reason, it is extremely important to consult real estate law lawyers in filing a deed cancellation and registration case. If you contact us, our law firm operating in Istanbul will guide you in the right way and provide you with the right service with its expert lawyer staff in the field of real estate law.
Although the action for cancellation and registration of title deed is not subject to statute of limitations, it will be beneficial to file the lawsuit as early as possible for many reasons such as the collection of evidence, ensuring that the parties are fully constituted, and preventing bona fide third parties from having rights by relying on the title deed.
COMPETENT AND AUTHORIZED COURT
Pursuant to the Code of Civil Procedure No. 6100, the competent court in land registry cancellation and registration cases is the Civil Courts of First Instance, which is the general competent court. However, if the dispute is based on the commercial enterprise of both parties or if the wrongful registration arises from a consumer transaction, it will have to be filed in courts with special jurisdiction.
According to the Code of Civil Procedure No. 6100, the courts of the place where the immovable property is located have absolute jurisdiction in cases arising from the real property. Title deed cancellation and registration actions shall also be filed in the court where the immovable is located. Since absolute jurisdiction is a condition of the lawsuit, the judge will investigate the issue of jurisdiction automatically and the opposing party may raise the objection of jurisdiction at any stage of the lawsuit.
If special circumstances arise in terms of both duty and authority, it is important to act in consultation with lawyers who are experts in the field of real estate law in order to file a deed cancellation and registration lawsuit in accordance with the terms of the lawsuit.
RESPONSIBILITY OF THE STATE FOR KEEPING THE LAND REGISTRY
In our law, the principle of trust in the land registry prevails and the information understood from the land registry is accepted to be correct. The State must act diligently while keeping the land registry and prevent false records from being kept. In the event that persons suffer material damages due to incorrect or incomplete keeping of the land registry, the State's faultless liability arises. This situation is stipulated in Article 1007 of the TCC by stating that "the State is responsible for all damages arising from the maintenance of the land registry". Pursuant to this article, persons who have suffered material damage due to the incorrect keeping of the land registry may file a lawsuit against the State for pecuniary damages. However, the State will not be obliged to compensate the damage if the damaged person or the third party is at fault in the incorrect keeping of the land registry, for example, if the parties have ensured registration in the land registry with an illegal transaction in order to deceive other persons.
Contacting our expert lawyers operating in the Kadıköy, Kozyatağı, Kartal region will not only help you in the field of real estate law, but also in terms of compensation law.
