T.R. SUPREME COURT
- Legal Department
Basis: 2015/3581
Decision: 2016/7039
Decision Date: 09.06.2016
ECRIMISIL CASE – WHERE THE CONDITION WILL BE REQUESTED TO BE REALIZED FROM USUFACTURING CONDITION FOR IMPROVEMENTS – DETERMINATION IF THE ACTUAL USE BINDING ALL STAKEHOLDERS HAS OCCURRED IN THE CONTRACTING PROPERTY WHERE THE 3-STOREY BUILDING IS LOCATED,
SUMMARY: Except for the exceptions listed in terms of the immovables subject to the lawsuit, the realization of the condition of prohibition from usufruct will be sought and the claim that the condition of prohibition from usufruct has been fulfilled can be proved with all kinds of evidence. It has not been revealed whether the de facto form of use that binds all the stakeholders has occurred in the contested immovable where the 3-storey building is located, if so, who or whose shares the contested part is used by and by whom, if not, whether there is a place for the plaintiff to use, whether there is an empty flat in the immovable. For this reason, it was decided to overturn the provision.
(4721 No. K. Art. 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 of the local court regarding the acceptance of the case was appealed by the defendant within the legal period, and the file was examined, the report of the Investigation Judge was read, his explanations were heard, the need was discussed and considered;
The case is about the request for ecrimisile.
The plaintiffs, claiming that the immovable property numbered 4802, parcel no. 14, owned by the inheritors …, has not been paid in return for their shares, although they have been used by the defendant heir for a long time, and that they have received a result even though they have drawn a warning letter, they requested a decision with an ecrimis.
The defendant defended the dismissal of the case.
The court decided to accept the case on the grounds that the claim was fixed.
The plaintiff, whose death was registered in the name of the inheritor of the immovable property, parcel no. 4802, block 14, on which the 3-storey building is located, which does not have a condominium servitude or condominium, which is the subject of the contention, is registered in the name of …, . It is fixed in dematerialized form that it has been transferred on behalf of the defendant … and out of action ….
It should be noted immediately that the parties are stakeholders in the immovable property subject to the lawsuit. The stakeholder, who cannot benefit from the real estate in shared ownership, can always request the prevention and/or compensation from the other stakeholder or stakeholders who hinder the acquisition of their share. In co-ownership, one of the stakeholders can file a lawsuit against the partners who prevent them from benefiting from the common immovable alone without obtaining the consent of the other stakeholders or assigning a representative to the inheritance company. However, if there is a place that that stakeholder uses without any contention in return for his share, there is no opportunity to hear the ecrimisil lawsuit filed by that stakeholder. According to the settled Supreme Court jurisprudence and scientific views in the same direction, the problem of the stakeholder, who claims that he uses less space than his share, should be resolved by filing a lawsuit for the elimination of the partition or partnership that brings final results through sale.
As a rule, stakeholders cannot demand compensation from each other unless they are prohibited. The realization of the condition of barring from usufruct depends on the fact that the claimant stakeholder’s desire to benefit from the immovable property or income that is the subject of the lawsuit has been notified to the defendant stakeholder before the ecrimisil period is requested. However, there are a number of exceptions to this rule that have emerged with established judicial practices. These; The immovable subject to the lawsuit is in the public domain, the immovable for which ecrimisil is sought is from a place that produces natural products (such as vineyards, gardens) or from places where legal results are obtained by leasing (such as workplaces, residences), the stakeholder occupying the shared immovable has a right to claim all of this place and denies the partnership of others are the cases where, as a result of the usage agreement between the stakeholders, the common immovable or parts of it that each stakeholder will benefit from are determined, and the plaintiff has previously filed a lawsuit against the other stakeholders regarding the prevention of sequestration, elimination of the partnership, ecrimisil and similar lawsuits or enforcement proceedings against other stakeholders. Apart from this, in terms of the product brought by the immovable, the products that occur spontaneously; There is no need for the condition of prohibition from usufruct to occur in case of occupation of the cut grass, collected hazelnut, tea or the business established by the inheritor or the businesses that generate income on their own.
Again, as a result of the usage agreement between the stakeholders, if the common immovable or parts of it that each stakeholder will benefit from are determined, the condition of barring from usufruct is not sought again in the event that the claimant stakeholder prevents the sequestration of this immovable against the defendant stakeholder, that the partnership is dissolved, that ecrimisil and similar lawsuits are filed.
For this reason, apart from the exceptions listed in terms of the immovables subject to the lawsuit, the fulfillment of the condition of prohibition from usufruct will be sought and the claim that the condition of prohibition from usufruct has been fulfilled can be proved with all kinds of evidence. (Declaration of the General Assembly of the Court of Cassation dated 27.02.2002 and numbered 2002/3-131 E, 2002/114 K)
As for the concrete event; In the contested real estate where the 3-storey building is located, whether the actual use that binds all the stakeholders has occurred, and if so, who and what is the contentious part.
It has not been revealed who owns their shares and by whom they are used, if not, whether there is a place for the plaintiff to use, whether there is an empty flat in the immovable.
As such, conducting research and examination in a way that covers the principles mentioned above, collecting all the evidence submitted by the parties, making discovery through expert experts on the spot, determining whether the actual way of use that binds all the stakeholders has occurred, and if so, who is using what, if the actual way of use has not occurred, the plaintiff’s share is in the immovable. While it is necessary to determine without a doubt whether there is a place for use or use, whether the whole of the immovable is used by the defendant, whether there is an empty flat in the immovable, and a decision should be made within the framework of the result to be reached, it is not correct to make a written judgment based on incomplete investigation.
Conclusion: The defendant’s objections to appeal are valid for the stated reasons. With its acceptance, it was unanimously decided on 09.06.2016 that the judgment be OVERFINED pursuant to Article 428 of the HUMK No. 1086, due to the reasons explained (by sending the provisional article 3 of the Law No. 6100), and that the advance fee be returned to the appellant.