Lawsuit for the Ownership of the Improvements

Improvements, based on Article 718 of the Turkish Civil Code, refer to ‘accessory parts’ in our law. According to the Turkish Civil Code and the Cadastre Law, individuals are considered the owners of the accessory parts of the property they own. The concept of ownership encompasses not only the property itself but also the accessory parts that are part of it. According to Article 684/2 of the Turkish Civil Code, an accessory part is defined as a component that is an essential element of the main object according to local customs, and it cannot be separated from the main object unless the object is destroyed, damaged, or its structure is altered.

Article 718 – Ownership of land includes the air above and the layers of soil beneath, to the extent necessary for its use. This ownership also extends to structures, plants, and resources, subject to legal limitations.

Improvements are recorded in the declarations section of the land registry according to Article 19, Paragraph 2 of the Cadastre Law. The presence of improvements in the declarations section serves as a function for clarity and ease of proof.

In order to determine the affiliation of improvements under certain conditions, a lawsuit for the determination of the affiliation of improvements has been regulated in our law. The lawsuit for the determination of the affiliation of improvements is considered an exceptional type of lawsuit in the doctrine and established case law of the Court of Cassation, but the filing of such a lawsuit is subject to certain restrictions. According to the opinion adopted in the Court of Cassation’s unified jurisprudence decisions, improvements are considered ‘accessory parts,’ and therefore, the improvements subject to the lawsuit are not accepted as having a separate existence from the immovable property. Consequently, the affiliation of these improvements is not recognized, and such lawsuits are typically seen as aimed at determining the improvements. In this regard, individuals can file a lawsuit for the affiliation of improvements, but it is subject to certain limitations and can only occur under specific conditions.

CIRCUMSTANCES UNDER WHICH A LAWSUIT FOR THE AFFILIATION OF IMPROVEMENTS CAN BE FILED

In order for a lawsuit for the determination of the affiliation of improvements to be filed, the conditions outlined in Article 106/2 of the Code of Civil Procedure, which governs declaratory actions, must be met. Specifically, it is required that “there must be a legal interest for the determination action to be brought,” and that “the legal interest in the case must remain current until the conclusion of the case.” These conditions must be primarily considered. In other words, in order to file a lawsuit for the affiliation of improvements, the Civil Procedure Code requires that there is a legal interest (which is a prerequisite for filing the lawsuit), and that this legal interest must remain valid and current until the conclusion of the case.

The conditions for filing a lawsuit for the determination of the affiliation of improvements, as accepted in the case law of the Court of Cassation and in legal doctrine, are as follows:

Existence of a lawsuit for the resolution of ongoing co-ownership on the immovable property,
Existence of an urban transformation application,
Existence of an expropriation process,
If the conditions listed in Article 19 of the Expropriation Law are applicable, the determination can be made.

One of the following conditions must be met. If any of the listed conditions exist, individuals may be able to file a lawsuit for the determination of the ownership of the improvements. These conditions are those adopted by the Court of Cassation and doctrine, but they are open to debate. The conditions for filing a lawsuit for the determination of the ownership of the improvements, as set out in the Civil Procedure Code, are the conditions specified as prerequisites for filing a lawsuit (such as the existence of a lawsuit for the resolution of co-ownership, the implementation of urban transformation, the expropriation process, and the applicability of the situations listed in Article 19 of the Expropriation Law). These conditions, apart from those mentioned in the Civil Procedure Code, are the conditions adopted in practice by the doctrine and the Court of Cassation.

PARTIES IN THE LAWSUIT FOR THE DETERMINATION OF THE OWNERSHIP OF IMPROVEMENTS

In the lawsuit for the determination of the ownership of the improvements, the plaintiff is the party that claims that the improvement in question was made or planted by themselves. Anyone who claims that they made or planted the improvement can file a lawsuit for the determination of its ownership. The plaintiffs who file the lawsuit are required to prove their claim, as specified in the Civil Procedure Code.

The plaintiff, who claims that the improvement in question was made by them, may file their lawsuit against all the owners listed in the land registry who do not accept that the improvement belongs to the plaintiff. If the owners listed in the land registry explicitly declare that the improvement belongs to the plaintiff, the plaintiff can no longer file a lawsuit for the determination of the ownership of the improvement against those owners who made the explicit declaration.

COMPETENT AND AUTHORIZED COURT IN THE LAWSUIT FOR THE DETERMINATION OF THE OWNERSHIP OF IMPROVEMENTS

The competent court for the lawsuit regarding the determination of the ownership of improvements is the civil court of first instance. The court authorized to hear the lawsuit regarding the ownership of the improvement is generally considered to be the court of the place where the improvement is located. The competent court for the determination may also be determined according to general jurisdiction, and there is no exclusive jurisdiction.

PROOF IN THE LAWSUIT FOR THE DETERMINATION OF THE OWNERSHIP OF IMPROVEMENTS

In the lawsuit regarding the ownership of the improvement, it is necessary to determine to whom the improvement in question belongs. The rules of proof specified in the Civil Procedure Code are used when determining the ownership of the improvement. According to the law, as a general rule, the party making the claim is responsible for proving their claim.

In the lawsuit for the determination of the ownership of the improvement, the method of proof is not subject to any specific form. The plaintiff, who claims that the improvement was made or planted by them, can prove their claim with any kind of evidence. In this case, witness testimony can also be used when determining the ownership of the improvement.

In the lawsuit for the determination of the ownership of the improvement, the presumption in Article 19/2 of the Cadastre Law can be utilized. According to the presumption arising from this legal article, the land registry record presumption can be referred to for the determination of the ownership of the improvement. However, the presumption arising from this legal provision does not constitute an absolute presumption. It is possible to challenge the presumption, and the party challenging it is responsible for proving their claim.

STATUTE OF LIMITATIONS IN THE LAWSUIT FOR THE DETERMINATION OF THE OWNERSHIP OF IMPROVEMENTS

There is no specific statutory limitation period provided by law for the determination of the ownership of the improvement. However, according to the Cadastre Law, there is an accepted statutory limitation period recognized by the Court of Cassation and legal doctrine. In this case, if the improvement was made or planted before the cadastre determination, there will be no statutory limitation period, and the lawsuit can be filed at any time. However, if there is a finalized cadastre determination, the 10-year limitation period stipulated by the Cadastre Law will apply, and the lawsuit for the determination of the ownership of the improvement can be filed within this limitation period.

According to Article 12/3 of the Cadastre Law, after ten years from the date the minutes regarding the rights, restrictions, and determinations specified in the cadastre records become final, no objections can be made based on legal grounds prior to the cadastre, and no lawsuits can be filed. If a lawsuit is filed after the 10-year period, even if the defendant acknowledges that the improvement belongs to the plaintiff, the lawsuit should be rejected due to the expiration of the limitation period, as the 10-year period is a time-barred period.

JUDGMENT TO BE GIVEN AT THE CONCLUSION OF THE LAWSUIT FOR THE DETERMINATION OF THE OWNERSHIP OF IMPROVEMENTS

As can be understood from its name, the lawsuit for the determination of the ownership of the improvement is a declaratory action. Therefore, the judgment to be issued by the court at the conclusion of the lawsuit will be of a declaratory nature, not constitutive. As such, there will be no change in the ownership rights as a result of the court’s decision.

Since the judgment to be made in the lawsuit for the determination of the ownership of the improvement will be of a declaratory nature, it cannot be subject to enforcement. However, if the determination of the ownership of the improvement has been decided within the scope of the lawsuit for the dissolution of the partnership, the distribution in the lawsuit for the dissolution of the partnership will be made with consideration of the determination of the ownership of the improvement. After the lawsuit for the determination of the ownership of the improvement, any receivables arising from the declaratory judgment can be subject to enforcement through an unjust enrichment lawsuit filed by the plaintiff.

The declaratory judgment to be given by the court at the conclusion of the lawsuit for the determination of the ownership of the improvement will, according to Article 303 of the Code of Civil Procedure, be considered a final judgment and a final evidence. Therefore, it will not be possible to file another lawsuit regarding the determination of the ownership of the improvement after the final judgment.

THE RELATIONSHIP BETWEEN THE LAWSUIT FOR THE DETERMINATION OF THE OWNERSHIP OF IMPROVEMENTS AND THE LAWSUIT FOR THE DISSOLUTION OF PARTNERSHIP

As previously mentioned, there are specific conditions, as accepted by both doctrine and the Court of Cassation, under which a person can file a lawsuit for the determination of the ownership of improvements. One of the situations in which a lawsuit for the determination of the ownership of improvements can be filed is the existence of a pending lawsuit for the dissolution of a partnership. It is foreseen that the plaintiff can file a lawsuit for the determination of the ownership of improvements if there is a pending lawsuit for the dissolution of the partnership between the parties. In this context, the existence of a pending lawsuit for the dissolution of the partnership will meet the requirement of an updated legal interest, which is a procedural condition for filing a lawsuit for the determination of the ownership of improvements under the Civil Procedure Code (HMK). Therefore, a lawsuit for the determination of the ownership of improvements can be filed. As accepted in the case law of the Court of Cassation, if there is a pending lawsuit for the dissolution of a partnership, expropriation, or urban transformation applications on the immovable, a lawsuit for the determination of the ownership of the improvement can be filed. In the absence of these conditions, however, the lawsuit will be dismissed due to the lack of a valid legal interest under the HMK.

In the concrete case, the lawsuit for the dissolution of the partnership with case number Hendek Civil Court of First Instance 2015/207-550 was decided to be considered as not filed. The relevant court decision became final on 01.12.2015 without being appealed. Since there is no pending lawsuit for the dissolution of the partnership, the plaintiff cannot be said to have an updated legal interest to file a determination lawsuit. Therefore, the court should have dismissed the lawsuit on procedural grounds due to the lack of legal interest (HMK Article 115), and it was incorrect to examine the substance of the case and issue a judgment as written (Court of Cassation 14th Civil Chamber Decision: 2018/589).

EXAMPLE COURT OF CASSATION DECISIONS REGARDING THE LAWSUIT FOR THE DETERMINATION OF THE OWNERSHIP OF IMPROVEMENTS

8th Civil Chamber 2014/25941 E., 2016/7641 K.
“Jurisprudence Text”

COURT: Civil Court of First Instance
TYPE OF CASE: Determination of the Ownership of Improvements (Muhdesat)

“… and … between the case for the determination of the ownership of improvements (Muhdesat) was accepted by the judgment numbered … given by the 3rd Civil Court of First Instance; the examination of the judgment by the Court of Cassation was requested in due time by the defendant’s attorney …; the file was reviewed, and the necessary considerations were made:”

DECISION

The plaintiff’s attorney requested that a decision be made regarding the determination of the ownership of the house and outbuildings on the land located in the Merkez District of … Municipality, with parcel numbers … to the north and … to the south, asserting that these properties belong to the plaintiff.

The defendant’s attorney argued that the case is unjust and contrary to the law and should be rejected.

After the court ruled in favor of the plaintiff, the judgment was appealed by the defendant’s attorney.

A person who owns something also owns its component parts (Article 684/1 of the Turkish Civil Code No. 4721). Ownership of land encompasses the air above it and the layers of soil below it to the extent that they are beneficial to its use. Buildings, plants, and resources fall within this ownership, subject to legal restrictions (Article 718 of the Turkish Civil Code). As emphasized in the Supreme Court’s Decision of 22.12.1995, numbered 1/3, in property law, improvements (muhdesat) refer to structures and facilities built on land, as well as trees planted in orchards or gardens. Improvements do not grant separate ownership rights independent of the land ownership but instead grant a personal right (Articles 722, 724, 729 of the Turkish Civil Code). No separate ownership over the land’s surface can be claimed for improvements like buildings or trees. As a general rule, the ownership of improvements cannot be determined to belong to anyone other than the landowner.

However, according to the rule “there is both a majority and a minority,” the request for the determination of ownership of the improvements should also include the identification of the person who created the improvement. In such cases, if there is an actual legal interest and the claim is proven, a ruling should be made confirming that the improvements were made by the plaintiff.

In the present case, based on the contents of the file, the gathered evidence, and the testimonies, it has been proven that the trees, the house with a basement, the courtyard, the stone wall, and the roofed oven were created and planted by the plaintiff. Therefore, the defendant’s objections outside the scope of the following paragraph are found to be groundless.
Although the court should have ruled on the determination of the plaintiff’s ownership of the improvements, it was incorrect to decide on the ownership of the improvements. However, since this issue does not require retrial, it is necessary to correct and approve this part of the judgment under Article 438/7 of the Civil Procedure Code (HUMK).

RESULT: The appeal of the judgment is accepted, and in accordance with Article 438/7 of the Civil Procedure Code, as referred to by Article 3 of the Transitional Provisions, the sentence “the determination that the ownership of the improvements belongs to the plaintiff” is removed and replaced with “the determination that the improvements were created by the plaintiff.” The judgment is thus CORRECTED AND APPROVED. The defendant’s other objections are rejected for the reasons stated in paragraph 1. The decision was made unanimously on 25.04.2016.

7th Civil Chamber 2021/6702 E., 2021/2895 K. “Jurisprudence Text”

COURT: Civil Court of Peace

Upon the application filed by the plaintiff’s attorney against the defendants on 02.12.2011 for the removal of the partnership, and after the hearing, the judgment rendered on 20.10.2015 was requested to be reviewed by the Court of Cassation by the defendant’s attorney. After the timely appeal petition was accepted, the case file and all documents were reviewed and necessary considerations were made:

DECISION

The case is related to the request for the removal of the partnership. The plaintiff’s attorney, in the lawsuit petition, requested the dissolution of the partnership through the sale of the property, and at later stages, claiming that the improvements on the property belonged to the plaintiff, requested the dissolution of the partnership through partition.

Some of the defendants raised a claim regarding the improvements (muhdesat) on the property in question. The court ruled in favor of the plaintiff, deciding to dissolve the partnership through a sale.

The judgment was appealed by the defendant’s attorney. Lawsuits for the dissolution of a partnership (co-ownership) are bilateral and result in similar outcomes for both parties. In these cases, the defendant has the same rights as the plaintiff. If the partnership is to be dissolved through a sale and there are improvements such as buildings, trees, etc., on the property, these improvements must be sold together with the land. However, if there is a notation in the title deed that the improvements belong to certain co-owners or if all the co-owners agree on this issue and the improvements increase the value of the land, the values of the land and the improvements must be separately determined at the time of the case in order to calculate the increase in value.

These determined values are then summed up to find the total value of the property. The percentage of the total value attributable to the land and to the improvements is determined. The proceeds from the sale are divided based on these percentages. The share corresponding to the improvements is allocated to the co-owner who owns the improvements, and the remaining amount is distributed among the co-owners according to their respective shares.

In lawsuits related to the dissolution of partnership (co-ownership) through sale, if there is a dispute regarding the ownership of the complementary parts (improvements) on the immovable property, such as buildings, trees, etc., and some of the co-owners claim rights over these improvements and request the resolution of this dispute, a reasonable time must be granted under Article 165 of the Civil Procedure Code (HMK) to the relevant co-owner to file a lawsuit at the competent court. If a lawsuit is filed within the given period, the result should be awaited. If no lawsuit is filed, the case should proceed as if there were no dispute on the matter.

If it is determined that the complementary part (improvement) belongs to a third party rather than the co-owners (partners), it will not be possible to include that third party in the lawsuit as the owner of the improvement and grant them a share of the sale price.

In the present case, although the defendant’s attorney and some of the defendants claimed that the improvements on the immovable property in question belonged to some of the title deed owners, it appears that the court did not grant a period for filing a lawsuit to determine the ownership of the improvements.

In this case, the court should first determine the statements of all parties regarding whether they accept the claim of the improvement, and if there is a dispute regarding the improvements, it should grant a reasonable time to those who claim ownership of the improvement to file a lawsuit for the ownership of the improvement in accordance with Article 165 of the HMK. If a lawsuit is filed, the result should be awaited. If all parties accept the claim of the improvement or if a lawsuit for the ownership of the improvement is filed and a decision is made on the ownership of the improvement by the relevant parties, the court should obtain a report from an expert and, based on the above-mentioned principles, determine the percentage of the sale price that corresponds to the improvements. The portion corresponding to the improvements should be allocated to the co-owners who own the improvements, and the remaining amount should be distributed to the co-owners in proportion to their shares. The distribution ratios should be clearly stated in the judgment. However, since there was a dispute between the parties regarding the improvements and these matters were not considered, the decision was not correct, and therefore the judgment must be overturned.

CONCLUSION: For the reasons explained above, the defendant’s attorney’s appeal objections are accepted, and the judgment is OVERTURNED. The court fee deposited in advance will be refunded to the depositor. The decision was made unanimously on 10/11/2021.

7th Civil Chamber 2021/3854 E., 2021/2854 K. “Case Law Text”

7th Civil Chamber
COURT: Diyarbakır Regional Court of Appeal, 4th Civil Chamber
DEFENDANTS: The Treasury, et al.

COURT OF FIRST INSTANCE: Solhan Civil Court of First Instance
The plaintiff’s attorney requested the determination of the immovable property in question by submitting a petition on 28.01.2019, and after the hearing, a judgment was made on 03.12.2019 rejecting the case. The plaintiff’s attorney requested the appeal of this judgment through the appellate review. Following the decision of the Diyarbakır Regional Court of Appeal, 4th Civil Chamber, to dismiss the appeal on its merits, the plaintiff’s appeal was accepted, and after reviewing the case file and all documents within it, the matter was considered:

DECISION

CASE
1.1. The plaintiff’s attorney stated that the subject property, plot 102, parcel 37, was in the possession of the plaintiff’s client, and although the property was registered in the name of the defendant administration, the property had been used by the plaintiff’s ancestors for over a century and was inherited by the plaintiff. The property was registered in the name of the Treasury as forest land following cadastral work in 2006. A land registry cancellation and registration lawsuit was filed under the Solhan Civil Court of First Instance’s file number 2013/8, which was rejected. The plaintiff’s attorney argued that the improvements made by the client in good faith, including water lines, trees, stone walls, and fences, were owned by the plaintiff and requested the determination of the ownership in the plaintiff’s name.
RESPONSE
2.1. The defendant, the General Directorate, represented by its attorney, argued that the property in question was a forest area and a public asset, and based on the consistent practices of the Court of Cassation, forest properties could not be subject to private ownership. The defendant requested the rejection of the case.
2.2. The defendant, the Treasury, represented by its attorney, argued that the subject immovable property was a forest property that could not be acquired through possession and was under the control and administration of the state, and requested the rejection of the case.

COURT OF FIRST INSTANCE DECISION
3.1. At the conclusion of the trial, the court decided to reject the case, stating that no legal value could be attributed to improvements (muhdesat) made on forest land.
REGIONAL COURT OF APPEAL DECISION
4.1. The plaintiff’s attorney requested the review of the judgment through an appellate process.
4.2. The Diyarbakır Regional Court of Appeal, 4th Civil Chamber, considered that since the subject property was registered as forest land in the name of the Treasury, there was no procedural or substantive violation of the law in the court’s factual and legal evaluation. As a result, the plaintiff’s appeal was dismissed on its merits in accordance with Article 353/1-b.1 of the Code of Civil Procedure No. 6100.
APPEAL
5.1. The plaintiff’s attorney filed an appeal against the decision of the Regional Court of Appeal within the prescribed time limit.
5.2. Grounds for Appeal
5.2.1. In the appeal petition, the plaintiff’s attorney stated that the lawsuit was not one aimed at determining and collecting the value of improvements (muhdesat), but rather aimed at determining who made the improvements. The attorney argued that after the expert reports were obtained, the court improperly and hastily made a decision without giving the plaintiff time to pay the court fees. The attorney referred to a precedent judgment by the 5th Civil Chamber of the Court of Cassation, dated 04.05.2006, case number 2006/1307 and decision number 2006/5553, which clearly stated that if an improvement was made by another party on land considered forest, the cost of that improvement should be paid to the person who made it. The attorney therefore requested that the case be accepted.

COURT OF CASSATION DECISION
6.1. The case concerns the request for the determination of improvements (muhdesat) based on the legal reason of expropriation.
6.2. From the content of the file and the collected evidence, it is understood that the subject property, Parcel 37 of Block 102, was registered as forest land in the name of the Treasury on 05.05.2006 through the land registry process, with an area of 1,196,809 m². The area in possession of the plaintiff is within the expropriation zone for a dam reservoir.
6.3. As is well known, a person who owns something also owns its supplementary parts (Turkish Civil Code, Article 684/1). The ownership of land includes, to the extent beneficial for its use, the air above and the layers of the earth below. This ownership encompasses permanent structures, plants, and resources, unless restricted by legal limitations (Turkish Civil Code, Article 718). As emphasized in the Supreme Court’s Unification of Precedents Decision No. 1/3 dated 22.12.1995, in Property Law, “muhdesat” refers to permanent structures, facilities, and trees planted as orchards or gardens on land.
6.4. Muhdesat is a personal right (Turkish Civil Code, Articles 722, 724, and 729) and does not confer independent ownership or limited real rights separate from the ownership of the land. It cannot be said that the improvements, such as permanent structures or trees on the land, have a separate ownership from the land itself. According to this principle and rule, as a general rule, the determination of ownership of the improvements cannot be requested from anyone other than the landowner.
6.5. A determination lawsuit is a specific type of case that does not result in an enforceable or executable judgment. As a natural consequence, the scope of such lawsuits is limited. As is well known, to file a determination lawsuit, there must be a current legal interest (Article 106/2 of the Code of Civil Procedure No. 6100), and this interest must remain valid until the conclusion of the case. Determination lawsuits are considered a precursor to action lawsuits (eda cases), and therefore, when an eda lawsuit can be filed, it is accepted that there is no legal interest in filing a determination lawsuit. Legal interest is a condition for the lawsuit, and it can be raised by the parties at any stage of the proceedings or addressed by the court ex officio. If there is no legal interest, the lawsuit should be dismissed on procedural grounds (Articles 114/1-h, 115 of the Code of Civil Procedure).
6.6. In both academic literature and the continuous practice of the Court of Cassation, in exceptional cases such as the removal of co-ownership, urban transformation projects, or expropriation proceedings, it is accepted that there is a current legal interest in filing a determination lawsuit for improvements.
6.7. According to the additional paragraph added to Article 19 of the Expropriation Law No. 2942 by Article 35 of Law No. 5177 dated 26.05.2004, in the case of expropriation of land, whether registered or not, by someone else, the person who made the improvements has the right to file a lawsuit for the determination of the improvement’s expropriation compensation. However, properties such as public pastures, meadows, winter quarters, forests, and active riverbeds, which are under the state’s control, cannot be subject to private ownership, cannot be acquired through possession, and do not have economic value due to their nature. Therefore, no legal value can be attributed to the improvements made on such properties, and the expropriating institution or the Treasury cannot benefit from such improvements. As such, the rejection of the case is found to be correct.
6.8. Based on the trial, the collected evidence, the content of the case file, the reasons stated in the decision of the regional court of appeal, and particularly the correct evaluation of the evidence, the objections to the appeal are rejected, and the regional court of appeal’s decision, which is in accordance with procedure and law, is UPHELD. The appeal fee is imposed on the appellant, and the file is sent back to the COURT OF FIRST INSTANCE, with a copy of the decision to be sent to the relevant Regional Court of Appeal, as unanimously decided on 09.11.2021.