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The type of action brought in cases where a land registry entry is alleged to have been made unlawfully, irregularly or wrongfully, and which serves to correct the land registry entry lawfully in favour of the right holder, is the action for cancellation of title deed and registration . This action is an important type of action for securing the property right of a person whose right in rem has been infringed. In this article, we discuss the nature of the action, the concept of wrongful registration, the grounds for the action frequently seen in practice, the court with subject-matter and territorial jurisdiction, and the parties to the action.
Currency note
This article was prepared in accordance with the legislation and practice in force on the date of its publication. Judicial practice may have changed on matters such as the relationship between actions based on collusion by the deceased and the action for reduction of testamentary dispositions, and the protection of third parties in transfers where there is no family home annotation. You are advised to consult a lawyer on the current position.
Actions for cancellation of title deed and registration are actions concerning the immovable property itself, that is, the property right; this has a number of consequences, such as the rule of exclusive jurisdiction and the action being subject to a proportional fee. Another important consequence of its being an action concerning the immovable property itself is that the judgment cannot be enforced before it becomes final.
The main consequences of its being an action concerning the immovable property itself are as follows:
Right to property · Protocol No. 1 to the ECHR
Protocol No. 1 to the European Convention on Human Rights obliges the contracting states to provide effective protection mechanisms to persons whose right to property has been infringed. Accordingly, where the infringement of the right to property has not been prevented despite the exhaustion of domestic remedies, an individual application may be made to the European Court of Human Rights.
As a rule, ownership of immovable property is acquired by registration, and registration requires a request for registration and a valid legal ground. This legal ground most often takes the form of a contract for the sale of immovable property.
In Article 1024/2 of the Turkish Civil Code “A registration that is not based on a binding legal transaction, or that lacks a legal ground, is improper” it is stated, in these terms, that the registration will be wrongful if it is based on an invalid or fictitious ground.
Wrongful registration may arise for different reasons. These reasons are not exhaustive, and in this study we will try to cover those that are important in practice.
In order to transfer immovable property, the person carrying out the transaction at the land registry must have legal capacity and the capacity of discernment at the time of transfer (Turkish Civil Code art. 9). Transactions concerning the sale of immovable property carried out by a person lacking legal capacity, and any transfer effected at the land registry, are therefore unlawful and may form the subject of an action for cancellation of title deed and registration. Moreover, as provided in Article 15 of the Turkish Civil Code, persons lacking the capacity of discernment cannot form a valid intention, so that their acts produce no legal effect.
A transfer of title effected through the abuse of a power of attorney constitutes an unlawful act, and any loss resulting from such transactions is remedied by an action for cancellation of title deed and registration. The agent is under a duty to refrain from acts and conduct that would harm the principal. Even where the agent is given authority to sell immovable property without any restriction, this does not entitle the agent to sell on unusual terms in disregard of the rules of good faith and the duties of loyalty and care.
The action for cancellation of title deed and registration is brought against the third party who knew, or in the circumstances ought to have known, that the agent was selling the property unlawfully. However, where the third party contracting with the agent did not know of the abuse of authority and could not have known of it even by exercising the care expected of them — that is, where the third party acted in good faith — the contract concluded with the agent is valid and binds the principal. In that case the third party’s good faith is protected, and the matter becomes relevant to the internal relationship between agent and principal.
Since a transfer of immovable property made with a forged power of attorney will be invalid, the owner of the immovable property may bring an action for cancellation of title deed at any time. However, if the person who acquired the immovable property in this way transfers it to another third party, the acquisition of the immovable property made in good faith by the third party acting in good faith will be protected under TCC Art. 1023.
Burden of proof
Since good faith is presumed, the claimant, being the former registered owner, will bear the burden of proving that the third party acted in bad faith.
Where the deceased, with the aim of defeating the inheritance rights of the heirs, carries out a fraudulent transaction to remove assets from the estate, that transaction may form the subject of an action for cancellation of title deed and registration. In practice this most often takes the form of the deceased transferring immovable property registered in their own name to third parties so that it does not pass to the heirs. Actions on this ground may be brought together with an action for abatement, or as a separate action after it. The decisive question here is whether the deceased acted with the intention of removing assets from the estate.
A person who has held immovable property that is not recorded in the land register in their possession as owner, without dispute and without interruption, for twenty years may request that ownership of the whole of that property, of a part of it or of a share in it be registered in the land register (Turkish Civil Code art. 713/1).
Turkish Civil Code, Art. 713/1
It is not possible to acquire ownership of immovable property registered in the land registry through acquisitive prescription and possession. However, if it cannot be determined from the land registry entry who the owner of the immovable property is, or if it belongs to a person declared absent twenty years earlier, it will be possible to acquire the immovable property through acquisitive prescription and possession (TCC Art. 713/2).
Accordingly, if it cannot be determined from the land registry entry who the owner of the immovable property is, or if the owner was declared absent twenty years earlier, and the person has possessed the immovable property as owner, without dispute and without interruption, for twenty years, he or she may bring an action for cancellation of title deed and registration in order to have the immovable property registered in his or her own name.
One spouse may not transfer the family home or create limited rights in rem over the family home without the express consent of the other spouse (TCC Art. 194/1).
Turkish Civil Code, Art. 194/1
However, in order to benefit from these rights, the spouse who is not the owner of the immovable property must first apply to the land registry directorate and request that a “family residence annotation” be entered in the land register. Only where this annotation has been entered can a transfer made without the consent of the spouse who entered it be rendered invalid by means of an action for cancellation of title deed and registration. This is because, if this annotation has not been entered, the acquisition of the third party acting in good faith will be protected (TCC Art. 1023).
As regards banks
However, even if there is no family home annotation in the land registry, banks are obliged to investigate and report on the purpose for which the immovable property is used when granting loans. Accordingly, a defence of good faith raised by banks on the ground that there was no annotation will not be accepted in respect of immovable property used as a residence.
Competent court · CCP Art. 2/1
Asliye Hukuk Mahkemeleri
Yetkili mahkeme · HMK m. 12/1
The court of the place where the immovable property is located (exclusive jurisdiction)
Unless otherwise provided, the court having subject-matter jurisdiction in actions concerning property rights and rights of personality — irrespective of the value or amount in dispute — is the civil court of first instance (Code of Civil Procedure art. 2/1). Under Article 2/1 of the Code of Civil Procedure, the courts having subject-matter jurisdiction in actions for cancellation of title deed and registration are therefore the civil courts of first instance.
In actions concerning a right in rem over immovable property, or which may result in a change in the holder of such a right, and in actions concerning possession of or a right of retention over immovable property, the court of the place where the property is situated has exclusive jurisdiction (Code of Civil Procedure art. 12/1). The court having territorial jurisdiction in actions for cancellation of title deed and registration is therefore the court of the place where the property is situated; as that jurisdiction is exclusive under Article 12/1, the action cannot be brought in any other court.
Claimant
The claimant is the person whose right in rem has been impaired by the improper registration.
Defendant
The defendant is the person who appears as the owner in the land registry. However, if that person has died, the action will be brought against the heirs who have not disclaimed the inheritance.
With regard to actions brought on the basis of extraordinary acquisitive prescription, in respect of the defendant, TCC Art. 713/3 provides “The action for registration shall be brought against the Treasury and the relevant public legal entities, or, where applicable, against the heirs of the person shown as owner in the land register” in these terms.
“The action for registration shall be brought against the Treasury and the relevant public legal entities, or, where applicable, against the heirs of the person shown as owner in the land register”
Turkish Civil Code, Art. 713/3
Rümeysa ÖZYÜREK
Related legislation: Turkish Civil Code No. 4721 (mevzuat.gov.tr)
It is an action brought, where a land registry entry is alleged to have been made unlawfully, irregularly or wrongfully, to correct the entry in favour of the rightful owner. As an action concerning rights in rem over immovable property, it is subject to the rule of exclusive jurisdiction and to proportional fees; the judgment cannot be enforced before it becomes final.
Under Article 2/1 of the Code of Civil Procedure (HMK), the court with subject-matter jurisdiction is the Civil Court of First Instance. Under Article 12/1 HMK, the court of the place where the immovable is located has exclusive jurisdiction; the action cannot be brought before the court of another place.
The action is brought against the person appearing as owner in the land registry; if that person has died, the heirs who have not renounced the inheritance are the defendants. In actions under Article 713 TMK, the action is brought against the Treasury and the relevant public legal entities, or, where applicable, the heirs of the person appearing as owner in the land registry.
Since a transfer made with a forged power of attorney is invalid, the owner may bring an action for cancellation of title at any time. However, if the immovable has been transferred to a third party acting in good faith, that person's acquisition is protected under Article 1023 of the Turkish Civil Code (TMK); the claimant must prove the third party's bad faith.
A fraudulent transfer made by the deceased with the aim of eliminating the heirs' rights may be the subject of an action for cancellation of title deed and registration. According to the article, what must essentially be established in these actions is whether the deceased acted with the intention of depriving the heirs of assets.
TMK 194/1’e göre eş, diğer eşin açık rızası olmadan aile konutunu devredemez. Makaleye göre tapuya aile konutu şerhi düşülmüşse rızasız devir tapu iptal ve tescil davasıyla geçersiz hale getirilebilir; şerh yoksa iyiniyetli üçüncü kişinin kazanımı korunur.
TMK 713/1’e göre tapu kütüğünde kayıtlı olmayan taşınmazı davasız ve aralıksız yirmi yıl malik sıfatıyla zilyetliğinde bulunduran kişi tescil isteyebilir. Tapuda kayıtlı taşınmaz bu yolla kural olarak edinilemez; TMK 713/2’deki istisnalar saklıdır.
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