The acquisition of immovable property by extraordinary statute of limitations is regulated in Article 713 of the Turkish Civil Code No. 4271.
Article 713- The person who owns an undocumented property in the Land Registry for twenty years without litigation and continuously and as a owner may request that the right of ownership on all, part or share of that property be registered in the land registry. Under the same circumstances, the owner may request that the entire property or part of the property registered in the name of a person who has been issued a gag decision twenty years ago be decided to register the right of ownership on all, part or part of that property in the land registry. (1) The registration case shall be filed against the Treasury and the relevant public legal entities or, if applicable, the heirs of the person who appears to be the owner of the title deed. The subject of the case is announced by the court once with the newspaper, as well as at least three times at appropriate vehicles and intervals where the property is located. If no one appeals or the objection is seen at the place of objection, claiming that the above conditions have not been fulfilled within three months of the last advertisement, and if the claimant’s claim is proven, the judge decides to register. The property is acquired as soon as the conditions stipulated in the first paragraph are realized. Defendants and objectors may request registration in their own name in the same case. In the decision, the nature, location, boundaries and area of the property whose registration is requested are indicated and a sketch containing the technical information organized by the experts is added to the decision. The provisions of the special law are reserved.
Considering the verdict; With the extraordinary winning statute of limitations, we can examine the acquisition of property under two main headings: material terms and conditions.
A-Financial conditions for acquiring property with an extraordinary winning statute of limitations can be considered as
1) The condition regarding the real estate,
2) The condition for right of possession.
- Conditions regarding Real Estate
In order to acquire property through an extraordinary winning statute of limitations according to Article 713 of the Turkish Civil Code;
- The property is not registered in the land registry
- The fact that it is not clear who the owner is from the land registry
- The estate must be registered in the name of a person who was issued a gag order 20 years ago.
Immovable assets not registered in the land registry can be acquired by extraordinary statute of limitations. Immovable assets registered in the land registry, which cannot be understood who the owner is from the registry or who has been issued a gag decision twenty years ago, can be acquired by extraordinary statute of limitations.
In this regard, it should be noted that it will not be possible to acquire ownership of the real estate registered in the land registry and whose ownership is known through the extraordinary winning statute of limitations.
Another thing to note in this regard is that the property of real estate that is not conducive to private property cannot be acquired through an extraordinary winning statute of limitations, whether or not it is registered in the land registry.
Whether or not it is registered in the deed, only privately owned properties may be won by extraordinary statute of limitations.
According to the provision of KK m. 18 / II, “Medium goods, service goods, forests and places allocated to a public service under the provisions and savings of the State and immovable property remaining to the State in accordance with its laws cannot be acquired by the winning statute of limitations, whether registered in the deed or not.”
It will not be possible to implement the Provisions for Winning through Ownership in Foundation Property. As a matter of fact, according to paragraph 15 of article 15 of the Foundations Law No. 5737, Property and Altitude Rights of Foundations in Hayrat Real Estates will not be gained by statute of limitations. Again, according to article 23 of the Foundations Law, the Provisions of Winning through Ownership on Foundation Property are not applied and there is regulation. In the provision of MK 117 / I, “it is stated that the Provisions of Winning through Ownership shall not be applied about the Foundation’s Assets, and it is not possible to obtain the goods of foundations subject to the Civil Code through the Winning Statute of Limitations”.
In order to acquire property through the extraordinary statute of limitations, in addition to the above-mentioned conditions, the property must not be owned by the public but must be a privately owned property. (General Assembly of the Supreme Court of Law 2017/1120 E. 2019/1371 K.)
- The condition for right of possession.
According to article 713 of the TMK, the person who will gain ownership with an extraordinary winning statute of limitations;
- As landlord
- Without trial and without interruption
- It is necessary to have a zilyet on the property for twenty years.
In the capacity of Malik, the man who acts as malik, who does not recognize the superiority of another, and who is a man of his own. In this context, the person who pays the rental fee or self-destrucation for the real estate in which he is a bell is not a person in the capacity of the owner.
The person who wants to gain ownership of the property with the extraordinary winning statute of limitations is under the burden of proving his or her dignity in the capacity of the owner, since he has earned a right in his favor from the ownership. It can be proved by any means of proof in determining whether the actual situation, the ziliment, is in the capacity of the owner.” That is, the proof of the ziliance falls on the bell, which claims to have gained ownership through the usual statute of limitations.
In order for possessory’s to benefit from the statute of limitations, his humiliation must have continued without trial, that is, without controversy. The case herein must not have been filed by the real owner in the Case of Rationing or the Case for The Prevention of The Remembrance (or the Case for the Prevention of Assault) or the Case for the Prevention of Handing Over.
In the capacity of landlord, there should be a zilietism, but also a continuous, continuous possessory. The purpose of this is that the zilietity continues continuously and the possessory is not lost during the statute of limitations. If the zilietity is lost precisely and continuously, the requirement for 20 years of non-stop zilietity is eliminated. Since the temporary loss of the ziliet or the establishment of the fer are not considered the loss of the ziliet, it does not prevent the statute of limitations from working.
The period of non-litigation and non-stop litigation is 20 years. However, this period is not necessarily obligatory to pass in the ownership of the person who will win the property. Each zilyet can add to its own period of remembrance, which is conducive to gaining with the statute of limitations of the ziliets before it.
The statute of limitations begins to operate in real estates not registered in the deed from the establishment of the property as a owner. In the real estate registered in the deed, the statute of limitations begins to work from the moment when the real estate becomes eligible to win with the statute of limitations and the conditions of the ownership and the zilyetlik are combined.
- We may collect under two headings conditions regarding the acquisition of property with an extraordinary winning statute of limitations
1-Registration case and advertisement
2- which have not been challenged or the objection has not been seen in place.
1-Registration Case and Announcement Requirement
According to article.713 / III of the Turkish Civil Code, possessor must file a registration case in order to win the property with an extraordinary statute of limitations.
If the immovable property that is the subject of the registration case is an immovable property not registered in the deed, if the case is accepted, the immovable property is registered on an independent page of the title registry upon the judge’s decision to register.
If the subject of the case is a property registered in the title deed, if the case is accepted, the registration of the old owner is abandoned and the right of ownership is registered in his name this time at the request of the plaintiff.
According to the provisions of the Turkish Civil Code, the subject of the case is announced by the court once with the newspaper, as well as at least three times at appropriate vehicles and intervals where the property is located. Within three months of the final announcement, no one will object, claiming that the conditions related to the real estate and the property have not been fulfilled, or if the claimant’s claim is proven, the judge decides to register.
Thus, with the extraordinary statute of limitations, the property is acquired before registration, not by the registration decision of the judge or by registration, but by the realization of the material conditions of winning by extraordinary statute of limitations, that is, the conditions of the two-decade litigation and non-stop ownership of an immovable property conducive to the extraordinary statute of limitations. In this context, the judge’s decision to register is not a decision that breeds innovation, but an explanatory decision.
2- No Objection within the Objection Period
After the final announcement of the court, the right of objection of those concerned will be raised. Those concerned have the right to object within three months of the last announcement.
If no objection is made by the relevant authorities within 3 months from the date of the last announcement or if the appeal is rejected by the court despite the objection, extraordinary statute of limitations will be formed and the court will decide on the registration of the property in question on behalf of the plaintiff.
In contrast, if the relevant people object within 3 months from the date of the last announcement and the objection is justified by the court, the plaintiff will not be able to acquire the ownership of the property. If the objectors claim that they are already the real owners, they will also be able to request that the registration be made in their name in the same case.
Judicial Decisions that can be read on the subject;
Supreme Court 8. Law Office 2018/12994 E. 2018/18390 K.
Supreme Court 8. Law Office 2017/11385 E. 2020/4189 K.
Supreme Court 8. Law Office 2016/18424 E. 2020/3980 K.
Supreme Court 8. Law Office 2017/9894 E. 2020/3097 K.
Supreme Court 8. Law Office 2016/16813 E. 2019/1969 K.
Supreme Court 8. Law Office 2018/2967 E. 2018/18392 K.
General Assembly of the Supreme Court of Law 2007/1-75 E., 2007/90 K.
Supreme Court 8. Law Office 2016/20952 E. 2016/17224 K.
