Registration that does not reveal the real rights status is illegal registration. Illegal registration may exist from the moment of registration due to a defect in the constituent elements of the registration, or it may result from a defect in its abandonment or a subsequent change. In case of illegal registration, the real right owner can always assert his right unless the conditions for bona fide real right acquisition in Articles 712 and 1023 of the Civil Code are met.

In accordance with Article 712 of the Turkish Civil Code;

If a person who is recorded as the owner in the land registry without a valid legal reason continues his possession of the real estate without any lawsuits and in good faith for ten years, the property right he has acquired in this way cannot be objected to.

As can be clearly understood from the provision, if the person who appears as the owner in the land registry without a valid legal reason continues to possess the immovable property in good faith for ten years without any lawsuits, he will have acquired the right of ownership in this way and no lawsuit for correction of the land registry will be filed against him.

According to Article 1023 of the Turkish Civil Code;

This acquisition of a third party who acquires property or other real rights based on the registration in the land registry in good faith is protected.

The good faith of the third person who acquires the same right in good faith from the person whose name is illegally registered in the land registry is protected. In other words, the third party acquires the real right and a lawsuit for correction of the land registry cannot be filed against him.

Apart from these two cases where the acquisition of real rights in good faith is protected, if there is an illegal registration in the land registry that does not reflect the real right status, the persons whose real rights have been damaged by the illegal registration can file a lawsuit for the correction of the land registry. According to Article 1025 of the Turkish Civil Code;

If a real right has been registered illegally or a registration has been canceled or changed illegally, the person whose real right has been damaged because of this can file a lawsuit for the correction of the land registry.

Any rights in rem and any compensation claims acquired by bona fide third parties based on this registration are reserved.

Pursuant to the provision, in case a right is registered illegally or in case of illegal abandonment or in case of an illegal change, the person whose right is damaged for this reason may file a lawsuit for correction of the land registry, without prejudice to the real rights acquired by bona fide third parties.

For example, if the ownership of the real estate belonging to A was registered illegally in the name of B and C acquired an easement in good faith by relying on the record appearing in the name of B in the title deed, A may request the correction of the illegal registration in the name of B through a lawsuit for correction of the title deed record. However, in this case, good faith C’s easement right is protected. As a result of the lawsuit, A acquires the ownership right over the real estate in a way that C’s easement right is protected. If good faith C had acquired the property right from B rather than the easement right, then A would have completely lost his right to file a lawsuit for correction of the land registry. In other words, since C’s goodwill would be preserved, it would not be possible for A to obtain ownership of the real estate.[1]

It should be noted that, in addition to the lawsuit for correction of the land registry, it can be filed against the person in whose name the illegal registration was made, as well as against the successors of the person in whose name the illegal registration was made, and against third parties who acquired the real estate in bad faith from the person in whose name the illegal registration was made. A lawsuit for correction of the land registry can be filed by people whose real rights have been damaged due to improper registration.

In addition, since the lawsuit for correction of the land registry is a lawsuit regarding real rights, it is not subject to statute of limitations. However, as stated before, the acquisition in question of the person who acquires real rights through ordinary prescription based on Article 712 of the Turkish Civil Code is protected. More clearly, if the right acquired through ordinary statute of limitations is a property right, then the person whose right has been damaged due to improper registration loses the right to file a lawsuit for correction of the land registry. However, if a real right other than ownership has been acquired through ordinary statute of limitations, then the person whose right has been damaged by illegal registration can file a lawsuit for correction of the land registry. In this case, the person whose rights were damaged due to illegal registration acquires the right to property. However, the limited real right acquired through ordinary statute of limitations is also protected.

Regarding Illegal Registration, the Decision of the 1st Civil Chamber of the Supreme Court of Appeals, Merits No. 2015/11049 and Decision No. 2015/12260, is as follows;

The plaintiff stated that in the writ-based enforcement proceedings initiated by the defendant, a notification was made on behalf of another B..P.. with the same name, and that the said person did not object to the pursuit and payment order, and as a result of the finalization of the enforcement proceedings, the immovable property numbered 15937, which he owned, was sold to the defendant through tender, as a deduction for his receivables. and requested that the title deed be canceled and registered, claiming that the registry created in the name of the defendant was corrupt.

The defendant stated that the enforcement proceedings were carried out duly and defended the rejection of the case.

The court decided to reject the case on the grounds that the tender made by the Enforcement Directorate was final and a long time had passed.

From the content of the file and the evidence collected; In the file numbered 1998/890 of Küçükçekmece 2nd Enforcement Directorate; 21.5. It is seen that with the tender held in 1999, the independent section number 7, which was a shop belonging to the plaintiff, was sold to the defendant by offsetting its receivables and a registry entry was created in his name.

In the Turkish legal system, the principle of provinciality is essential in the formation of land registry records. The fact that the request for termination of the tender is rejected does not eliminate the fundamental reason for improper registration.

In this situation; Considering the content of the claim explained above and the way it is put forward, it is clear that the case is based on the allegation that the formation of the real estate registration in question in the name of the defendant party is devoid of cause and therefore it is considered an illegal registration. There is no doubt that such lawsuits can be filed at any time based on property rights.

On the other hand, if the defendant has the title of participating in the tender, he is the one who knows the incident and even more, he is the one who created and carried out the incident. It is not possible for this person to be considered a ‘third party’ in the acquisition.

As for the concrete incident; According to the records brought from the Population Directorate, the plaintiff is registered in the population of Adana Province ………. District …….. Neighborhood, is from …. and …….., Istanbul It is understood that B.. P.. was born on 8.5.1960 and that he was divorced on 23.11.1995 and that he is still single, and the name of his divorced wife is “…”.

Additionally, according to the letter of the Enforcement Inspection Authority dated 21.6.1999, there is no case for termination of a tender that has been opened.

That being the case; While all evidence should be collected in line with the claims and defenses of the parties based on the allegation of illegal registration, the investigation should be completed completely, the party evidence collected and to be collected should be evaluated together and a decision should be made according to the result to be obtained, it is not correct to make a written decision based on erroneous evaluation and illegal justification.

The plaintiff’s objections are valid.

Another issue that needs to be emphasized is the mistakes made by the land registry officer in the registry, other than the constituent elements required for registration. In this case, Article 1027 of the Turkish Civil Code will come to the fore;

Unless the parties concerned have written consent, the land registry officer can correct errors in the land registry only by court decision.

Correction may also take the form of canceling the old registration and making a new registration.

The land registry officer corrects simple clerical errors ex officio in accordance with the regulation issued by the President.

If the mistake made in the land registry consists of an ordinary typing error, the land registry director makes the necessary corrections ex officio or upon request, provided that he explains the reason in the corrections register. For example, if registration should be made in the name of Ahmet Demir as a result of a valid sale, but the registration is made in the name of Ahmet Deniz by mistake, the land registry officer makes the necessary corrections in the registry upon request or ex officio.[2]

Regarding the issue, the 1st Civil Chamber of the Supreme Court of Appeals made the following provision in its Merits No. 2016/3621 and Decision No. 2018/8786;

 Information that must be included in the register in Article 28 of the Land Registry Regulation (Article 25 of the Land Registry Regulation put into effect by the Decision of the Council of Ministers dated 18.05.1994 and numbered 94/5623); It is determined as the owner’s name, surname, father’s name, reason for acquisition, date and journal number.

According to the Land Registry Regulation, the date of birth and mother’s name of the land registry owner are not among the mandatory information to be included in the register. Therefore, the addition or correction of population information, which is not required to be in the land registry, cannot be requested through a lawsuit. If an error requiring correction has been made in the transaction based on the registration of the title deed, this error will be investigated in accordance with Article 75 of the Land Registry Regulation dated 22.07.2013 (Article 87 of the Land Registry Regulation dated 18.05.1994), upon the application of the person concerned, and the conditions in that article are investigated, should be corrected by the administration.

As for the concrete case, the court ruled that it is not correct to correct the date of birth of the stakeholders in the immovable properties in dispute, ignoring the fact that the date of birth is not a mandatory element in the register; It is not right to make a judgment in terms of stakeholders by exceeding the demand.

REFERENCE

Oğuzman, Seçili, Oktay-Özdemir, Eşya Hukuku (Kısaltılmış) , Filiz Publisher, 2021

The Decision of the 1st Civil Chamber of the Supreme Court of Appeals, Merits No. 2015/11049 and Decision No. 2015/12260

The 1st Civil Chamber of the Supreme Court of Appeals, in its decision, Merits No. 2016/3621 and Decision No. 2018/8786

Turkish Civil Code and Related Legislation

[1] Oğuzman, Seçili, Oktay-Özdemir, Eşya Hukuku (Kısaltılmış) , Filiz Publisher, 2021, p.158

[2] Oğuzman, Seçili, Oktay-Özdemir, Eşya Hukuku (Kısaltılmış) , Filiz Publisher, 2021, p.161