FOR THE TURKISH NATION

T. C.
SİNCAN
2. CONSUMER COURT REASONED DECISION

BASIC NO: 2013/4587
DECISION NO: 2013/1187

CASE: CANCELLATION AND REGISTRATION OF TAPU – CLAIM
DATE OF CASE: 06.07.2010
DATE OF DECISION: 10.12.2013
JUSTIFIED DECISION WRITTEN DATE: 03.01.2014

As a result of the open trial of the case in the court between the parties in accordance with the simple trial procedure, the plaintiff’s request: The plaintiff’s attorney summarized in the petition; In accordance with the agreement signed between the client and the defendant, the defendant has completed the Jetkent 3 site consisting of 7 blocks on the land registered in Ankara Province, Yenikent Village, Arapyüzü position, 735 Island, 1 Parcel 1, and completed his client’s contract no. Despite the fact that the respondent company did not fulfill its obligations arising from the contract within due time and was in default, the client had completed the payments of the apartment he had purchased and although he had not received the title deed for about 10 years after the signing of the contract; In accordance with the architectural project, the construction is completed and the client is advised to be delivered to the client as soon as possible, the title deed of this apartment on behalf of the client registration, the defendant, did not deliver the apartment on time and defaulted since the date of 30.06.2001 total rent amount of 19.500,00.TL of each lease has been processed from the date of payment and the date of the lawsuit will be processed with the advance payment of interest and the duration of the case will be processed monthly payment 275.00.TL to be paid to the client, to determine the loss of value suffered by his apartment in Jetkent 3, which was left as rough construction in the last 10 years, to be paid to the client, to determine the suitability and soundness of the construction to the earthquake regulations, due to the damages suffered by the client due to non-pecuniary damage. 00.TL claimed compensation for non-pecuniary damage.
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In the petition dated 05.12.2013, the representative of the plaintiff briefly stated; The 14th Chamber of the Court of Cassation requested that the reversal decision dated 12.06.2013 be complied with and that the rent receivable subject to the reversal was decided on the basis of the rent amount calculated in the first expert report dated 02.03.2011 until the date of the lawsuit.
THE RESPONSE OF THE CASE: that the case should be opened in the residence of the defendant, the general court of competent jurisdiction, that the general courts are charged with this matter, that the plaintiff’s claims for pecuniary and non-pecuniary damages based on the allegations of tort are timed out, B.K. According to Article 47, it is necessary to open the case within 1 year from the moment the tort is learned, that the plaintiff is not fulfilling the contract which is the source of the claim of material and moral damages and that the actions of the apartment attrition have been passed for a period of more than 1 year, an immovable sale agreement made between the parties externally. that the title deed cannot be requested on the basis of this agreement. Article 706 and the Land Registry Law 26, although it is committed to deliver the housing subject to the contract due to the legal and actual impossibilities, the amount of non-pecuniary damages demanded by the parties is exorbitant, for this reason, first of all and rejected the procedure, and in case this request was not accepted, it demanded the rejection of the case unjustly and without legal support.
EVALUATION OF EVIDENCE AND JUSTIFICATION:

The case between the parties, Ankara Province, Sincan District, Yenikent Village, Arapyuzu Mevkii, 735 Island, Parcel 1-A-3 Block, 6th floor, No. 40 of the residence with the cancellation of registration and registration of the rent, will receive loss of value and receive moral compensation With the decision of 2010/397 Principal, 2011/345 dated 20.04.2011 of the Consumer Court, the decision of the Court of Appeals was rejected and the appeal of the decision was made by the plaintiff’s attorney on 14.12.2011, 2011/11140 Principal and 2011 / 15447 with the decision number; Sözleşme The contract has not been terminated by the plaintiff, the debtor is in default, the creditor has exercised the right to isteme request compensation for the same performance and delay seçim of the 106th Article of the Code of Obligations. In this respect, the plaintiff may also request the loss of rent from the defendant. Court, the plaintiff’s claims to be examined and evaluated in this framework instead of reaching a conclusion that the invalidity of the contract instead of betting all claims in writing is not correct … “on the grounds of corruption, the Supreme Court of Judgment proceedings in accordance with the procedure and the decision of the Supreme Court continued to be followed.
The decision of the Sincan Consumer Court dated 12.06.2012 with the decision of 2012/535, Decision 2012/476, partially accepted the case, the subject of the case, Ankara Province, Sincan District, Yenikent Quarter, 735 Island, Parcel A-3 Block, 6th Floor, 40 No. of the residence on behalf of the defendant Company cancellation of the title deed registration and registration on behalf of the plaintiff, the claimant’s claim will receive partial rent with a total of 18.191,00.TL rent receivable dated 02.11.2010 in accordance with the monthly report of the expert in the rent determined on the monthly schedule the advances are charged to the defendant by rent the request of the plaintiff for the depreciation of the house and the determination of the suitability and soundness of the building in which the house is located, the rejection of the plaintiff’s request for non-pecuniary compensation, and the precautionary injunction put forward during the proceedings until the finalization of the Court’s decision, the defendant Jetpa Sınai Ürünleri Üretim ve Pazarlama Ltd. Şti. Sti. with the decision of the 14th Civil Chamber of the Court of Cassation dated 24.01.2013 and numbered 2012/13931 and numbered 2013/997; “According to the circumstances of the court
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it is not correct to decide whether to pay the rent compensation in a written form without considering that the compensation of the rent amounts to be processed during the lawsuit will constitute a separate subject matter.The case was therefore brought before the consumer court. In accordance with Article 1 of the Law on the legal interest and default interest no.
With the expert report prepared as a result of the discovery made in the neighborhood, the A-3 block where the subject housing is located stands at 5% construction level, the block where the house is located is constructed only in accordance with the reinforced concrete carcass, tunnel formwork system, and there is no construction activity on the site for a long time. that the partial blocks were not built at the base level and some blocks were never built; It is understood that there are no completed or resettled dwellings, the dwellings do not come to resettlement or usage phase, the overall construction level is 23.13%, and the plaintiff’s loss report of the plaintiff is calculated for the months of 02.11.2010.

Although the ordinary written agreement regarding the sale of the house made between the parties, B.K. Article 3/2 of the Supreme Court of Appeals dated 25.01.1984 and numbered 3/1. In the immovable property under which the prohibition of abuse of rights is accepted and the construction of which is started in accordance with the Property Law, the parties agree to sell all the debts of the parties without a valid contract for the sale of the house and the seller will use the deed as the owner. It is emphasized that the registration case opened on the basis of Article 2 of the TMK can be accepted if the property does not approach the transfer,Accordingly, it was concluded that the plaintiff’s request for performance of the plaintiff who fulfilled all the acts under the contract concluded between the parties was contrary to the prohibition of the abuse of the right of the defendant who did not fulfill the claim that the contract was invalid and for these reasons it was not possible to accept the defendant’s defense of the invalidity of the contract.

According to the scope of the file, it was observed that the housing and the site subject to the lawsuit were not completed, that the site was partially built according to the reinforced concrete tunnel formwork system and that it stood at the level of rough construction and that the demand for payment of the loss to the plaintiff with the determination of the house was not accepted within the same performance and delay compensation request; In addition, it was decided that it was not possible for the Court to determine the conformity and soundness of the earthquake regulations by the Court in order to continue construction.
498 of the Code of Obligations numbered 818. “The person who has been raped in a manner contrary to the law of the right to personage, may suffer the payment of some money in the name of non-pecuniary damages.” provision has been given.
In accordance with this provision, personal rights must be attacked in order to be awarded non-pecuniary damage. This article does not cover the loss of assets. In other words, the fact that damages have been incurred against the mujarret property does not allow for moral compensation. An action that leads to property may, more or less, reduce one’s spiritual sorrow. However, such a regret is not a regret that arises from the violation of the personal rights protected by Article 49 of the Turkish Code of Obligations and Article 25 of the Code.
The legal conditions of the plaintiff’s claim for non-pecuniary damages cannot be proved in any way and in what way, no concrete evidence can be provided by the plaintiff on this issue, the violation of the contract alone will not constitute a basis for non-pecuniary damages;
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In order to win, the existence of an unlawful, unjust attack on personal rights was required, the plaintiff could not prove the existence of an unlawful attack on his personal rights, and for these reasons, it was necessary to decide on the rejection of the request.
When the whole file scope is evaluated together; According to Article 81 of the CBT, in accordance with Article 81 of the Contract, in accordance with Article 81 of the Contract, in accordance with Article 81 of the CB In the case of the creditor performing the acts, the defendant is in the position of the debtor, the creditor plaintiff in accordance with Article 106 of the BK, exercising the right to demand the same due to the performance and delay of the electoral rights and the cancellation of the title deed within the scope of these requests with the approval of the claim and loss of rent It was necessary to decide on the partial admission of the case as set out in the Supreme Court of Appeals.
As stated in the similar decision of the 4th Civil Chamber of the Court of Cassation dated 01.03.2006 and numbered 2006/1273 Basis-2017, a separate attorney fee was calculated for the non-pecuniary damages claim in accordance with the provisions of the Minimum Attendance Tariff at the date of the decision and the provision was established as follows.

PROVISION: As explained above;
1-With partial acceptance of the case;
With the cancellation of the title deed registration on behalf of the defendant Company of the house no. A-3 Block, 6th Floor, 40, located in Yenikent District, 735 Island, Parcel 1, Sincan District, Ankara Province, which is the subject of the lawsuit,
2-With the partial acceptance of the claimant’s claim that the claimant will receive a total of 18.191,00.TL rent receivable from the defendant by taking legal interest on the rent amounts determined on the monthly monthly chart in accordance with the monthly monthly chart dated 02.11.2010.
3-The additional report of the expert dated 02.11.2010 issued during the trial is considered as an annex to the Court’s decision,
4-DISCLAIMER of the claimant’s claims regarding the excess of the rent receivable,
5-REJECTED by the claimant’s request for the depreciation of the house and requests for the determination of the conformity and soundness of the building where the house is located,
6-REJECTING the claimant’s claim for non-pecuniary damage,
7- The plaintiff’s claims regarding the surplus are kept,
8-TL 1,288,49, which is calculated as a decision and warrant, is deducted from TL 1,285,65 previously deposited and the remaining 192,84 TL is taken from the defendant and recorded to the Treasury as revenue.
9-12/1 of the Minimum Attendance Tariff in force on the date of the decision. TL 2,597,27 of attorney fee calculated in accordance with the article taken from the defendant to be represented by the proxy and paid to the plaintiff,
10-TL 1.309,00 of the rejected portion of the case in force at the date of the decision 12/2 of the Minimum Attendance Tariff. Article 440.00 of the attorney’s fee is calculated from the plaintiff and the defendant who represents himself and given to the defendant,
11-In respect of non-pecuniary damages filed by the plaintiff, 10/3 of the Minimum Wage Tariff which is in force at the date of the decision. Article 660.00 of the attorney’s fee is taken from the plaintiff and given to the defendant who has represented himself as a proxy,
12-The total amount of 788,60 TL made by plaintiff due to this trial
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355.94 TL, which is calculated over the accepted part of the case from the defendant’s expense, is paid to the plaintiff and the balance is left on the plaintiff,
13- The total amount of TL 92,17, which is calculated over the rejected portion of the case, from the plaintiff and paid to the defendant from the total amount of TL 168.00 made by the defendant due to this trial;
14- Since there is an advance payment of TL 10.95 deposited and unused by the plaintiff, it will be used for the notification of the decision and since there is no advance payment, there is no room for a decision on this matter,
15-Refund of TL 109,30 in advance paid to the defendant when the decision is finalized in accordance with Article 333 of HMK,
In accordance with the Provisional Article 3 of the HMK No. 6100, the application of the provisions of the Law No. 1086 on appeal until the date of the commencement of duty of the Regional Courts of Appeals will continue to be applied within 15 days after the notification of the reasoned decision to be sent to the Court of Appeals. the plaintiff’s attorney including the open way Av. Ayşe Köseyener’s decision was clearly read and explained in the absence of the defendant’s attorney.10.12.2013

Clerk 129040 Judge 35171

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