Decision Date: 09.06.2016
ECRIMISIL CASE – THE REALIZATION OF THE USUFRUCT BAN CONDITION IN TERMS OF REAL ESTATE WILL BE SOUGHT – WHETHER THE ACTUAL USE THAT BINDS ALL STAKEHOLDERS IN THE CONTENTIOUS REAL ESTATE WHERE THE 3-STOREY BUILDING IS LOCATED IS NOT DETERMINED – THE PROVISION IS BROKEN
Abstract: the realization of the usufruct ban condition will be sought, except for the exceptions counted in terms of the immovable property subject to the case, and the claim that the usufruct ban condition has occurred can be proven by all kinds of evidence. It is not determined whether the actual form of use connecting all stakeholders is formed in the contested real estate where the 3-storey building is located, who or who is hitting their share of the contested part if it is formed and by whom it is used, if it is not formed, whether there is a place that the plaintiff can use, whether there is an empty apartment in the real estate. For this reason, it was decided to overturn the provision.
(4721 P. K. m. 995) (YHGK 27.02.2002 t. 2002/3-131 E 2002/114 K.)
Case and decision: at the end of the ecrimisil case between the parties, the decision made by the Local Court on the admission of the case was appealed by the defendant within the legal period, the file was examined, the report of the examination Judge … was read, his explanations were heard, and the necessary discussion and consideration was given;
The case relates to the ecrimisile request.
The plaintiffs, heirs …’s maliki 4802 island 14 parcel of real estate has been used by the defendant’s heir for a long time, but no price has been paid in exchange for their share, even though they have received the result of the warning, claiming that they have asked for a decision on the ecrimisile.
The defendant has defended the dismissal of the case.
The court decided to accept the case on the grounds that the claim was fixed.
The subject of contention is a 3-story building on which there is no floor easement or condominium installed 4802 Islands 14 parcels of real estate registered on behalf of the heirs of the parties … the claimant who is the heirs of the death …, . and the defendant …and the record that he sees transferred on behalf of the defendant … is fixed.
It should be immediately noted that the parties to the lawsuit are stakeholders. A stakeholder who cannot benefit from real estate in shared ownership can always ask other stakeholders or stakeholders who have obstacles to prevent and/or ecrimisil from paying for their share. In joint ownership, one of the stakeholders may file an ecrimisil lawsuit against the partners who prevent the other stakeholders from using the Joint real estate alone without obtaining their consent or appointing a representative to the Heritage Company. However, the ecrimisil case, which it will open if there is a part of the stakeholder that it uses without contention in exchange for its share, is not possible to rest. According to established Supreme Court case law and scientific opinions in the same direction, the problem of the stakeholder who claims to use less than its share should be resolved by filing a lawsuit to eliminate the division or partnership through sale, which brings a final result.
As a rule, stakeholders cannot ask each other for ecrimisil unless they are banned. The realization of the usufruct ban condition also depends on the fact that the plaintiff stakeholder has been notified to the respondent stakeholder of the desire to take advantage of the property or income subject to the lawsuit before the requested period of ecrimisil. However, there are a number of exceptions to this rule that have arisen with established judicial practices. These; immovable state property to be the subject of the case, the adequate payment is requested immovable (vineyards, orchards, such as giving or natural product (offices, housing) and legal places to be rented obtained fruition, joint stakeholders in the real estate and The Fellowship of others who occupied this whole place to the denial of claims, the agreement between stakeholders for the benefit of all stakeholders as a result of use of immovable joint, or the presence of specific departments, other stakeholders earlier this against immovable by the plaintiff relating to the Prevention of elatma, elimination of partnership, ecrimisil and similar cases have been filed or enforcement has been pursued. Apart from this, as a product brought by real estate, self-generated products; mowed grass, collected nuts, tea or a business established by muris, or businesses that bring income in their own right, in case of occupation, there is no need to form a usufruct ban condition.
Again, if, as a result of the use agreement between the stakeholders, it is clear that the Joint real estate or parts that each stakeholder will benefit from, the plaintiff is not required by the stakeholder to prevent this relocation, eliminate the partnership, ecrimisil, etc.in case of filing a lawsuit against the defendant stakeholder, the condition of banning usufruct is not sought.
For this reason, the realization of the usufruct ban condition will be sought, except for the exceptions counted in terms of the immovable property subject to the case, and the claim that the usufruct ban condition has occurred can be proven by all kinds of evidence. (27.02.2002 day of the General Assembly of the Supreme Court of Law and 2002/3-131 e, 2002/114 k no.)
As for the concrete event; whether the actual form of use that connects all stakeholders is formed in the contentious real estate where the 3-storey building is located, who or who hit their share of the contentious part if it was formed and who used it, if it was not formed, whether there is a place that the plaintiff can use, whether there is an empty apartment in the real estate is not revealed.
In these circumstances, the above-mentioned principles in a format that reported by research and investigation covers all the gathering of evidence, expert witnesses in actual use that is occurring through the formation of discovery that connects all stakeholders who use the way it is where determination of actual use has gone the way, if uses or can use the share corresponding to the place of the plaintiff whether you are moving premises, or all of the real estate used by the defendant is not, it is not right that a decision should be made within the framework of the result to be reached, that the provision should be established as written, satisfied with the incomplete investigation.
Conclusion: the defendant’s appeals are in place for the specified reasons. By its adoption, the provision is for reasons described (provisional 3 of Act 6100.article 428 of Humk No. 1086.a unanimous decision was made on 09.06.2016 to overturn the article and to return the advance fee received to the appellant.