THE CONCEPT OF CLAIM OF OWNERSHIP AND CLAIM OF OWNERSHIP CASE
The term “claim of ownership” means entitlement or acquisition of rights.
A claim of ownership case is a lawsuit aimed at determining the ownership of movable or immovable property that is contested. A claim of ownership case can be filed for reasons such as seizure, inheritance, or the involuntary transfer of property.
However, in our legal system, the claim of ownership case is most commonly filed for reasons of seizure and inheritance.
CLAIM OF OWNERSHIP CASE IN INHERITANCE
It is filed because the assets of the deceased are in the hands of others after their death. Through this case, heirs prove their rights and ensure that the assets are returned to them.
The Claim of Ownership in Case of Seizure (Hacizde İstihkak Davası)
A claim of ownership over a seized property in an enforcement proceeding is resolved through an ownership claim lawsuit, which determines to whom the property belongs as a result of the claim.
What is the purpose of an ownership claim lawsuit?
- The purpose of an ownership claim lawsuit due to inheritance is to determine that all assets of the estate have been transferred to the inheritance.
- In an ownership claim lawsuit due to seizure, the purpose is to remove the lien on the property being claimed.
Who can an ownership claim lawsuit be filed against?
- An ownership claim lawsuit based on inheritance is filed against anyone who holds estate property without any legal right.
- An ownership claim lawsuit based on seizure is filed by the creditor against a third party if the seized property is in the hands of the debtor. However, if the debtor objects to the third party’s ownership claim, the debtor must also be included as a defendant. If the seized property is in the hands of a third party, the creditor files the ownership claim lawsuit against that third party.
Time Limits in Ownership Claim Lawsuits
Time Limits Due to Inheritance
The plaintiff has 1 year from the date they learn that they are the heir and that the good-faith defendant is holding the estate or estate property.
In any case, the time limit is 10 years from the death of the deceased or the opening of the will.
Against those who are not in good faith, the statute of limitations is 20 years.
Statutory Periods for Seizure Claims
The time period for raising a claim of ownership – 7 days from the discovery of the seizure
The time period for objecting to the claim of ownership – 3 days from the notification of the claim to the parties
The time period for filing a claim of ownership – 7 days from the notification or communication of the decision regarding the continuation of the enforcement proceedings
In which court is a claim of ownership filed?
In a claim of ownership due to inheritance, the competent court is the Civil Court of First Instance. The court with jurisdiction is the court of the last domicile of the deceased.
In a claim of ownership due to attachment, the competent court is the Enforcement Court. The court with jurisdiction is the court where the enforcement proceedings were conducted or the court of the defendant’s domicile.
EXAMPLE SUPREME COURT DECISIONS
8th Civil Chamber 2016/6066 E., 2019/1107 K.
“Case Law Text”
COURT: Execution Law Court
TYPE OF CASE: Claim of Ownership
At the conclusion of the trial in the case discussed above between the parties, the Court decided to dismiss the case. Following the appeal of the judgment by the plaintiff’s creditor attorney, the file was reviewed by the Chamber, and the necessary deliberations were made.
DECISION
The plaintiff’s attorney argued that the third party’s claim of rightful ownership regarding the seized goods on 11.05.2015 was raised in order to hide assets from the creditor, and requested that the rightful ownership claim be rejected.
The defendant third party’s attorney argued that the case should be dismissed.
As a result of the trial, the court determined that during the seizure on 11.05.2015, the Enforcement Office had given the creditor a period to file a rightful ownership lawsuit. Despite the fact that the creditor was required to file the lawsuit within 7 days, the lawsuit was filed on 03.08.2015, exceeding the 7-day period. Therefore, the court dismissed the case on the grounds of exceeding the time limit. The judgment was appealed by the plaintiff’s attorney.
The lawsuit was filed by the creditor with a request for the rejection of the rightful ownership claim pursuant to Article 99 of the Enforcement and Bankruptcy Law (İİK).
It was decided that the seizure on 11.05.2015 was deemed to have been carried out in accordance with Article 99 of the İİK, and the lawsuit was filed on 03.08.2015.
Article 99 of the İİK states: “If the seized item is not in the possession of the debtor but is in the possession of a third party claiming ownership or any other proprietary right, the Enforcement Director shall give the creditor seven days to file a rightful ownership lawsuit against the third party in the Enforcement Court. If no lawsuit is filed in the Enforcement Court within this period, the third party’s claim shall be deemed accepted…”
Accordingly, in order for the decision of the Directorate on the application of Article 99 of the İİK to have legal consequences, it is required that the creditor be given seven days to file a rightful ownership lawsuit against the third party in the Enforcement Court, and a warning must be made that if the lawsuit is not filed, the third party’s rightful ownership claim will be deemed accepted. Both conditions must be present.
In the present case, the creditor was not notified of the deadline to file a lawsuit, nor was any warning issued.
In this case, since the decision does not contain the conditions mentioned above, it is not suitable to produce legal results.
Under these circumstances, the court must accept that the lawsuit was filed within the legal period and make a decision on the merits of the dispute based on the evidence to be gathered.
CONCLUSION: For the reasons explained above, the appeal objections of the creditor’s attorney are accepted, and the judgment is REVERSED in accordance with Articles 366 of the Enforcement and Bankruptcy Law (İİK) and 428 of the Civil Procedure Law (HUMK). It is stated that the parties can request a correction of the decision within 10 days from the notification of the Court of Cassation’s decision, in accordance with Article 366/3 of the İİK. The advance fee will be refunded to the appellant upon request. The decision was made unanimously on 06.02.2019.
8th Civil Chamber 2015/22516 E., 2018/14476 K.
“Judgment Text”
COURT: Enforcement Court
CASE TYPE: Ownership Claim
In the case heard between the parties, as explained above, the court ruled to dismiss the case. Upon the appeal of the judgment by the plaintiff’s attorney, the file was reviewed by the Chamber, and the necessary considerations were made.
DECISION
The plaintiff’s creditor’s attorney stated that the third party’s claim of right concerning the goods seized on 08.01.2015 was raised to prevent the creditor from recovering the property and requested that the claim of right be rejected.
The defendant’s third-party attorney requested the rejection of the case, as it was not filed within the legal time limit.
As a result of the trial conducted by the court, it was determined that the creditor was given a period by the Enforcement Directorate during the seizure on 08.01.2015 to file a claim of right. Although the creditor was required to file the claim within 7 days, the lawsuit was filed on 15.01.2015, which exceeded the 7-day period. Therefore, the court decided to reject the case based on the time limitation. The decision was appealed by the plaintiff’s creditor’s attorney.
The case concerns the creditor’s request for the rejection of the claim of right based on Article 99 of the Enforcement and Bankruptcy Code (İİK).
During the seizure on 08.01.2015, the creditor was given a period to file a lawsuit in accordance with Article 99 of the İİK, and the lawsuit was filed on 15.01.2015.
Article 99 of the İİK states: “If the seized item is not in the possession of the debtor but is in the possession of a third party who claims ownership or other real rights, the enforcement officer will give the creditor seven days to file a claim of right against the third party in the Enforcement Court. If the creditor does not file the claim of right within this period, the claim of the third party is considered accepted…”
Therefore, for the decision of the Directorate regarding the application of Article 99 of the İİK to have legal effect, it is necessary that the creditor be given a seven-day period to file a claim of right against the third party in the Enforcement Court, and that the creditor is informed that if no claim is filed, the third party’s claim of right will be considered accepted.
In the present case, no warning was given to the creditor during the seizure. As a result, the decision is not legally effective, as it does not contain the conditions mentioned above.
Additionally, Article 19 of the Enforcement and Bankruptcy Code (İİK) states, “The first day is not included in periods defined in days…”
According to this provision, the last day for filing the lawsuit is determined to be 15.01.2015, meaning that the lawsuit was filed within the statutory period.
Furthermore, in claims of right, a valid seizure is a prerequisite for the lawsuit, and it must be considered ex officio at every stage of the proceedings until the judgment becomes final.
In this case, upon reviewing the underlying enforcement file, it is apparent that during the seizure on 08.01.2015, the enforcement office only took the statements of the parties present and did not seize any movable property. Therefore, it is clear that there was no valid seizure.
In this case, although the court should have dismissed the lawsuit due to the lack of a prerequisite for the existence of a valid seizure, the decision to dismiss the lawsuit based on time limitations is not correct. However, since this issue does not require a retrial and the part of the judgment related to dismissal is considered correct, it is deemed appropriate, in accordance with Article 438/7 of the Civil Procedure Code (HUMK), to modify the reasoning of the judgment as explained and to correct and affirm the decision.
CONCLUSION: The appeal objections of the claimant’s attorney are rejected, and for the reasons explained above, the judgment, with its corrected reasoning, is AFFIRMED. It is also stated that, in accordance with Article 366/3 of the Enforcement and Bankruptcy Code (İİK), the parties may request a correction of the judgment within 10 days from the notification of the Supreme Court’s decision, and the remaining 8.20 TL from the appellant creditor shall be collected after offsetting the 27.70 TL advance fee with the affirmation fee. The decision was made unanimously on 27.06.2018.
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