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December 21, 2023

DEED CANCELLATION AND REGISTRATION LAWSUIT

Introduction

It is possible to register and register transactions in the land registry that do not reflect the real situation and are contrary to the procedure and the law. In this case, both the interests of the real right holders arising from the right of ownership are harmed and an illegal result arises with corrupt registration. Therefore, a deed cancellation and registration lawsuit is filed in order to make the registrations in the land registry in accordance with the real situation and the law.

Conditions for filing a Land Registry Cancellation and Registration Lawsuit

Procedural and unlawful registrations that do not reflect the real right ownership status in the land registry are called corrupt registrations. With the corrupt registration, the establishment of real rights, abandonment or modification transactions may have been carried out on the immovable property before the land registry, or if the right of ownership has been acquired by inheritance or by acquisitive prescription, the registration in the land registry will not reflect the new situation. In such cases, the real right holders may request the cancellation of the registrations in the land registry and their registration according to the new and real situation through a deed cancellation and registration lawsuit. 

It is important to note that although the action for cancellation and registration of title deeds is regulated within the framework of the Turkish Civil Code No. 4721 (“Civil Code“), the situations in which it can be filed are not specifically determined in a limited number. Therefore, within the framework of the established Court of Cassation jurisprudence and doctrinal opinions, title deed annulment and registration actions may be filed against all transactions that are based on corrupt registration. However, the most well-known and practically encountered grounds for actions for cancellation and registration of title deeds are as follows

  • Deed cancellation and registration lawsuit due to inheritance evasion (Deceased collusion),
  • Acquisition of immovable property by acquisitive prescription and action for cancellation and registration of title deed due to possession,
  • Deed cancellation and registration lawsuit due to abuse of power of attorney,
  • Deed cancellation and registration lawsuit arising from zoning applications,
  • Deed cancellation and registration lawsuit due to the maintenance contract until death,
  • Action for cancellation and registration of title deed due to registration by a legally incompetent person,
  • Deed cancellation and registration lawsuit based on registration by a legally incompetent person,

In such cases, especially in cases where the actual situation does not coincide with the registration in the land registry, or in cases of registration transactions carried out in violation of the law and procedure, a deed cancellation and registration lawsuit is filed to cancel the registration in the land registry and to re-register in accordance with the truth, to be evaluated according to the characteristics of each concrete case.

The Competent and Authorized Court in Land Registry Cancellation and Registration Case

First of all, it should be noted that if a lawsuit is filed based on the right of ownership or if the decision to be made as a result of the lawsuit creates a change in the land registry, this lawsuit is related to the immovable property. Pursuant to Article 12 of the 6100 Code of Civil Procedure, the court of the place where the immovable property is located has absolute jurisdiction in cases related to the real property.

The action for cancellation and registration of title deed, on the other hand, is related to the immovable property as it is intended to bring about a change in the land registry itself within the framework of the above-mentioned issues. In this respect, the court competent to hear the action for cancellation and registration of title deed is the court where the immovable is located and this jurisdiction rule is in the nature of absolute jurisdiction. In the event that a deed cancellation and registration lawsuit is filed in a place other than where the immovable is located, the lawsuit will be dismissed due to lack of jurisdiction. 

The general competent court in deed cancellation and registration cases is the Civil Courts of First Instance. However, depending on the characteristics of each concrete case, it is possible that the lawsuit to be filed may be a lawsuit for cancellation and registration of title deeds arising from a commercial transaction or a lawsuit for cancellation and registration of title deeds arising from a consumer transaction. In these cases, the court in charge varies and therefore, the legal analysis of the concrete case is important. 

Persons to whom Land Registry Cancellation and Registration Lawsuits may be filed

A deed cancellation and registration lawsuit is filed against the person in whose name the registration was made in the land registry, in other words, against the person or persons who appear as the owner in the land registry. However, in some cases, it may also be filed against the legal entity of the village or municipality, forest management, treasury and land registry directorate depending on the concrete case, or against the heirs of the person on whose behalf the wrongful registration was made, if the person on whose behalf the wrongful registration was made has passed away. 

It should be noted that it is important to determine the parties and to direct the lawsuit to all parties during the filing of the deed cancellation and registration lawsuit. Otherwise, if the lawsuit is not directed to all of the relevant persons, it is possible to reject the deed cancellation and registration lawsuit due to the lack of party organization. 

Statute of Limitations and Prescription Period in Land Registry Cancellation and Registration Lawsuits

As a rule, a deed cancellation and registration lawsuit is not subject to statute of limitations since it is based on the right of ownership and essentially a right in rem. This is because the right in rem can be asserted at any time. However, as stated above, some actions for annulment and registration of title deeds may arise from special laws, and there may be special statutes of limitation and prescription periods for these cases. For example, in cases of cancellation and registration of title deeds based on pre-cadastral rights, due to the 10 years statute of limitations stipulated in the Cadastral Law, a land registry that was created after cadastral works cannot be sued on the basis of pre-cadastral reasons with the claim that the land registry does not reflect the reality after 10 years have passed since its creation. Therefore, it is important to determine the relevant legislation according to the characteristics of each concrete case. 

As a result, the action for cancellation and registration of title deeds is of great importance since it is essentially aimed at the elimination of unlawful and procedural registrations in the land registry and registrations that do not reflect the real situation and to protect the interests of the real right holders. For this reason, it is very important to analyse the legal grounds for each concrete case, to direct the parties to all parties and to establish procedures in accordance with the specially prescribed periods of limitation of rights during the submission of deed cancellation and registration lawsuits.

Best Regards

Kılınç Law & Consulting

 

Authors

Merve Çebi

Merve Çebi

Lawyer

Duygu Doğan Şahiner

Duygu Doğan Şahiner

Partner