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 REAL VALUE AS BASIS IN TITLE DEED CANCELLATION AND REGISTRATION CASES AND
THE PROTECTION OF THE RIGHT OF ACCESS TO COURT
Introduction
In its decision dated 23.10.2024 and numbered 2021/46030, the Constitutional Court examined the allegation of violation of the right of access to court raised through an individual application. The incident subject to the decision; is shaped around the rejection of the appeal application on the grounds that the valuation made by the first instance court in a title deed cancellation and registration case arising from the violation of the right of pre-emption remained below the monetary finality threshold for appeal. Emphasizing that the right of access to court is not limited solely to the opportunity to file a lawsuit; but also includes the ability to apply to legal remedies effectively, foreseeably, and in a manner that is practically usable, the Constitutional Court evaluated the consequences of the monetary threshold practice in terms of the right of access in the concrete case.
Examination Regarding the Decision Rendered by the Constitutional Court
In the case subject to the Constitutional Court, after one of the co-owners who is a shareholder in a property subject to co-ownership sold their share to a third party, the other co-owner filed a title deed cancellation and registration lawsuit on the allegation that the right of pre-emption was violated. The first instance court; ruled for the cancellation of the applicant’s share in the immovable and its registration in the name of the plaintiff, and also decided that 5,100-TL, determined on the basis of the sale price shown in the official deed during the sale of the immovable, would be paid to the applicant upon the finalization of the decision. The applicant applied to the appellate remedy against the decision; however, the Regional Court of Appeal rejected the appellate application on the grounds that 5,100-TL was below the monetary finality threshold for appeal.
The right of pre-emption is a right that, in cases where a share is sold to a third party in immovables subject to the provisions of co-ownership, grants other co-owners the authority to purchase the sold share with priority and becomes exercisable together with the sale. In the examined decision, the applicant is the third party who purchased the 1/16 share in the immovable. As understood from the decision, in the concrete case, there is a difference between the sale price shown in the title deed and the price actually paid.
According to the determinations made by the first instance court, the amount paid via the bank account is 100,000.00-TL. In addition, in the expert report obtained by the Court, it was stated that the value of the plaintiff’s 848.04 m² share was 370,000-TL. Although the value of the applicant’s share is not separately included in the report, it is understood that the share belonging to the applicant is 516 m². In the proportional calculation made on the basis of these data, it is considered that the value of the applicant’s share could be approximately 225,139.52-TL.
Nevertheless; despite the fact that the bank receipts were available in the case file, while it was necessary, in line with the case-law of the Court of Cassation, to determine the real value of the immovable through an expert assessment and to complete the fees ex officio based on this value and to make an evaluation accordingly, a الحكم was established over 5,100-TL on the basis of the price in the official deed. As a result of this approach, the appellate review could not be conducted due to the monetary finality threshold. The Constitutional Court evaluated this chain effect as a violation of the right of access to court under Article 36 of the Constitution; and decided to conduct a retrial in order to eliminate the consequences of the violation.
Conclusion
With this decision, the Constitutional Court clearly set forth the obligation of courts, in title deed cancellation and registration cases based on the right of pre-emption, not to suffice with the price shown in the title deed but to investigate ex officio the real sale value of the immovable and to determine it through an expert assessment. Leaving decisions rendered without completing the fees over this amount after determining the real value, and based solely on the low price in the title deed, outside of review on the grounds of the monetary finality threshold for appeal, violates the right of access to court. In this respect, the decision constitutes an important precedent emphasizing that, in terms of immovable property law, the material truth must be taken as basis and the safeguards of legal remedies must not be rendered ineffective.
Sincerely,
Atabay Law Office