Taking the Actual Value as the Basis in Actions for Cancellation and Registration of Title Deeds and the Protection of the Right of Access to Court
TAKING THE ACTUAL VALUE AS THE BASIS IN ACTIONS FOR CANCELLATION AND REGISTRATION OF TITLE DEEDS AND THE PROTECTION OF THE RIGHT OF ACCESS TO COURT
Introduction
In its decision dated 23.10.2024 with application number 2021/46030, the Constitutional Court examined the allegation of a violation of the right of access to court raised through an individual application. The case subject to the decision was shaped around the rejection of the appeal application on the grounds that the valuation made by the court of first instance remained below the monetary finality threshold for appeal in an action for cancellation and registration of title deed arising from the violation of the right of pre-emption. The Constitutional Court emphasized that the right of access to court is not limited solely to the possibility of filing a lawsuit; it also encompasses the ability to apply to legal remedies in an effective, foreseeable and practically usable manner, and evaluated the consequences of the application of the monetary threshold in the concrete case in terms of the right of access.
Examination of the Decision Rendered by the Constitutional Court
In the case brought before the Constitutional Court, following the sale of a share in an immovable property subject to joint ownership by one of the co-owners to a third party, another co-owner filed an action for cancellation and registration of title deed alleging a violation of the right of pre-emption. The court of first instance ruled for the cancellation of the applicant’s share in the immovable property and its registration in the name of the plaintiff, and further ordered that TRY 5,100, determined on the basis of the sale price shown in the official deed at the time of sale, be paid to the applicant upon finalization of the decision. The applicant applied to the appellate remedy against the decision; however, the Regional Court of Appeal rejected the appeal on the grounds that TRY 5,100 was below the monetary finality threshold for appeal.
The right of pre-emption is a right that becomes exercisable upon the sale of a share to a third party in immovable properties subject to joint ownership, granting other co-owners the authority to purchase the sold share with priority. In the decision under review, the applicant is the third party who purchased a 1/16 share in the immovable property. As understood from the decision, there is a discrepancy between the sale price shown in the title deed and the amount actually paid in the concrete case.
According to the determinations of the court of first instance, the amount paid via bank transfer was TRY 100,000.00. In addition, the expert report obtained by the Court stated that the value of the plaintiff’s 848.04 m² share was TRY 370,000. Although the value of the applicant’s share was not separately stated in the report, it is understood that the applicant’s share was 516 m². Based on these data and the proportional calculation, it is assessed that the value of the applicant’s share could be approximately TRY 225,139.52.
Despite this, although bank receipts were present in the file, and notwithstanding that in line with the case law of the Court of Cassation the actual value of the immovable property should be determined ex officio through expert examination and the assessment should be made by completing the court fees based on this value, judgment was rendered on the basis of TRY 5,100 as shown in the official deed. As a result of this approach, appellate review could not be conducted due to the monetary finality threshold. The Constitutional Court considered this chain effect as a violation of the right of access to court under Article 36 of the Constitution and ordered a retrial in order to remedy the consequences of the violation.
Conclusion
With this decision, the Constitutional Court clearly set forth that in actions for cancellation and registration of title deeds based on the right of pre-emption, courts are obliged not to confine themselves to the price shown in the title deed, but to ex officio investigate the actual sale value of the immovable property and determine it through expert examination. Rendering decisions without completing the court fees based on the actual value and solely on the basis of the low price shown in the title deed, and leaving such decisions outside appellate review due to the monetary finality threshold, constitutes a violation of the right of access to court. In this respect, the decision constitutes an important precedent emphasizing that the material truth must be taken as the basis in immovable property law and that the safeguards of legal remedies must not be rendered ineffective.
Saygılarımızla,
Atabay Hukuk Bürosu