Against whom can a lawsuit for determination of ownership of the encumbrance be filed?
The lawsuit for the determination of the ownership of the encumbrance must be filed against all title deed owners who do not accept that the encumbrance belongs to the plaintiff.
A lawsuit for the determination of the ownership of the land improvements cannot be filed against the shareholders or title deed owners who explicitly declare that the land improvements belong to the plaintiff. It should be noted immediately that this lawsuit should be filed against all title deed owners who do not make a clear statement as to whether the encumbrance belongs to the plaintiff or not.
The Competent Court for the Determination of the Ownership of the Encumbrance
The Civil Court of First Instance is the competent court for the determination of the ownership of the encumbrance.
The competent court in the case of determination of the ownership of the encumbrance is the court where the encumbrance is located.
The decision on the determination of the ownership of the encumbrance cannot be executed before it is finalized
The judgment regarding the determination of the ownership of the property cannot be executed before it is finalized. Likewise, the judgment costs and attorney’s fee included in the judgment cannot be enforced without finalization, as they are the accessories of the judgment.
The debtor’s attorney applied to the execution court for the cancellation of the proceeding, claiming that the judgment subject to the proceeding has not been finalized and cannot be made the subject of the proceeding without finalization, and the court decided to reject the complaint on the grounds that the request in the judgment based on the proceeding is related to the determination that the buildings on the 324 parcel were built by the plaintiff, and that it is not related to the real estate, and that it can be executed without finalization. The application of the debtor to the enforcement court is related to the fact that the judgment, which is the basis of the proceeding, is related to the determination of ownership (muhtesat) and therefore cannot be executed before it is finalized. When the judgment which is the basis of the proceeding is examined; it is seen that the debtor’s request for the determination of ownership (muhtesat) was rejected by the court. In this case, the judgment subject to the proceeding is related to the determination of ownership in terms of the debtor, and it is not possible to enforce it before it is finalized, and the receivables that are ancillary to the judgment cannot be enforced before the judgment is finalized (Y12HD-Decision: 2019/6660).
The Relationship between the Determination of the Ownership of the Miscellaneous Property and the Izaleyi Şuyu Case
It is accepted in the doctrine and in the ongoing practices of the Court of Cassation that there is a current legal interest in filing a case for the determination of the encumbrance in exceptional cases such as the existence of a pending case for the elimination of the partnership, an urban transformation application or an expropriation transaction.
In the concrete case, the Hendek Civil Court of Peace, which was opened about the immovable subject to the lawsuit, decided to deem the lawsuit for the elimination of the partnership numbered 2015/207-550 as not filed, and the relevant court ruling was finalized on 01.12.2015 without appeal, and since there is no pending izale-yi şuyu lawsuit, it cannot be said that the plaintiff has a current legal interest in filing a determination lawsuit. While the court should have decided to dismiss the case procedurally due to the lack of legal interest (Article 115 of the CCP), it was not deemed correct to make a decision of acceptance by examining the merits of the case in writing (Y14HD-Decision: 2018/589).
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