What is Legal Incapacity in Deed Cancellation Case?
Legal incapacity refers to cases where a person does not have the power of appeal or the capacity to act. Incapacity is the lack of the ability to understand, evaluate and distinguish the causes and consequences of one’s actions and transactions. Anyone who transfers an immovable property in the land registry must have the power of appeal and the capacity to act at the time of the transfer (Art. 9 of the Civil Code). According to the Civil Code, the capacity of appeal is the power to understand, evaluate and distinguish the causes and consequences of an individual’s behavior, actions and transactions. For example, a person who has lost the ability to act rationally due to being under the age of 18, being intoxicated at the time of transfer, having mental weakness, old age or any of these reasons does not have the capacity to act.
Real estate sales transactions and real estate transfers in the title deed made by the person who does not have the capacity to act are illegal and are subject to the deed cancellation and registration case. Deed cancellation and registration lawsuit; It is filed to bring the title deed record, which is alleged to be illegal, irregular or corruptly issued, into compliance with the law. Since the action for cancellation of title deed is a lawsuit regarding the same of the immovable property, i.e. the right of ownership, the court judgment cannot be enforced before it is finalized.
It should be especially noted that the claim of incompetence in deed cancellation and registration lawsuits filed for more than one reason should be examined before other reasons. Since incompetence concerns public order, it should be examined by the court first. For example, it is contrary to public order for a person who performs a legal transaction under the influence of mental illnesses such as schizophrenia, paranoia, manic-depressive disorder (bipolar affective disorder) to produce legal results.
Statute of Limitations for Deed Cancellation Due to Legal Incompetence
There is no statute of limitations or a period of limitation in a deed cancellation and registration lawsuit filed due to legal incompetence. Incompetence requires the nullity of the transaction.
The (former) Turkish Civil Code, on which the local court based its judgment, stipulates that “If the person, who is registered as the owner in the land registry without a valid legal reason, continues his possession on the immovable property for 10 years without litigation and without interruption and in good faith, the right of ownership acquired by this way cannot be challenged”. According to the aforementioned regulation, the granting of rights to the registered owner is subject to the condition that there is no valid legal reason for the transfer and registration. However, the incompetence asserted in the lawsuit has been accepted in practice and doctrine as a reason for a null and void transaction. Thus, it is clear that the validity or invalidity of a non-existent transaction cannot be discussed. In this case, it is obligatory to consider that the (former) Turkish Civil Code cannot be applied in the case at hand in terms of the claim and to investigate the claim of incapacity (Y1HD-K.2004/13418)
Who Can File a Deed Cancellation Lawsuit Due to Incompetence?
A deed cancellation and registration lawsuit can only be filed by the previous owner of the immovable property to be subject to the lawsuit. The court must ex officio consider at every stage of the case whether the person filing the lawsuit is the former owner or not.
In lawsuits filed with the allegation of legal incompetence, a lawsuit must be filed by appointing a guardian for the real right holder who is alleged to be incompetent and the guardian must represent him/her in legal proceedings by obtaining permission from the guardianship authority.
If the legal incapacity of the heir is in question, the title deed cancellation and registration lawsuit must be filed on behalf of the estate.
Against whom can a deed cancellation lawsuit be filed due to incompetence?
All lawsuits regarding the ownership of immovable property and the deed cancellation and registration lawsuit are filed against the person who appears as the owner of the ownership right of the immovable in the title deed record. If the owner of the record is dead, the deed cancellation and registration lawsuit must be directed to the heirs of the owner.
If it is requested to remove a real or personal right belonging to a third party in the title deed record together with the deed cancellation and registration lawsuit, the owner of the right in the title deed record must also be sued. For example; mortgage, pre-emption right, real or personal rights such as real estate sales promise agreement annotated to the title deed, right of peace, etc. If the abandonment of real or personal rights is also requested, a lawsuit should also be filed against the persons in whose favor these rights are established.
Title deed registration lawsuits to be filed due to extraordinary statute of limitations must be filed against the relevant legal entity and the treasury together (TMK Art. 713/3). For example, the person who has been in possession of the immovable property within the borders of a village for 20 years without interruption and without interruption should file a land registration lawsuit against both the village legal entity and the treasury.
How to File a Title Deed Cancellation and Registration Case Due to Legal Incompetence?
As with all real estate lawsuits, the action for cancellation of title deed due to lack of legal capacity is filed in the place where the immovable is located (Art. 12 of the CCP). The court where the immovable is located is the court of final jurisdiction. The parties cannot agree to have the lawsuit heard in a court other than the court of final jurisdiction.
The action for cancellation and registration of title deed due to lack of capacity shall be filed in the civil court of first instance (CCP Art. 2/1). Regardless of the characteristics of the immovable property such as its nature, size, value, etc., the court in charge of hearing the case is the civil court of first instance.
In the petition for cancellation and registration of title deed, first of all, the reason for legal incapacity should be clearly stated, and reports, graphs or documents, if any, should be attached to the case file. In addition, the registration information of the immovable property and its status in the land and the illegalities in the transaction made according to the characteristics of the event should be clearly explained. Since the land registry records will be brought to the case file together with the documents that constitute the basis of the records, accurate information will reduce the loss of time. In the petition for annulment of title deed, it should be emphasized which issues require expert examination and what should be considered during the discovery process or when listening to witnesses.
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