Lawsuits for elimination of joint ownershipare a type of two-sided lawsuit that allows the joint ownership relationship between shareholders / partners to end and transfer to individual ownership of the immovable or movable property subject to ownership collectively or jointly. The lawsuit is based on the principle that individuals cannot be forced to continue the shared state of ownership.
Common ownership has been regulated in article 688 and its continuation, and joint ownership has been regulated in article 701 and its continuation of the Turkish Civil Code.
Article 688 of the Civil Code on common ownership “In common ownership, more than one person owns a whole thing that is not divided materially, with certain shares.’’
Unless otherwise specified, shares are considered equal.
’Each of the stakeholders has the rights and obligations of the owner in terms of its share. The share can be transferred, pledged and seized by creditors. ” This provision is the mandatory provision.
The termination of shared ownership is regulated in Articles 698 and 699 of the Turkish Civil Code.
“Article 698- Unless there is an obligation to continue the common ownership in accordance with a legal transaction or due to the fact that the shared good is dedicated to a permanent purpose, each of the stakeholders may request that the property be shared.
The right to ask to share can be limited to a maximum of ten years by a legal process. Contracts for the continuation of shared ownership in immovables depend on the official form and an annotation can be given to the land registry.
Sharing cannot be requested at an inappropriate time. "
"Article 699- Sharing is done in the form of dividing the goods exactly or by selling them by bargaining or increasing the price.
If no agreement can be reached in the form of sharing, the judge, upon the request of one of the stakeholders, decides that the goods should be divided and shared exactly, and if the values of the divided parts do not match each other, the value of the parts with the missing value will be added to equalization.
If the request for division is not deemed appropriate for the situation and conditions, and if it is not possible to divide the shared good without a significant loss of value, the sale is decided by auction. The decision to increase the sales among stakeholders depends on the consent of all stakeholders. "
According to this; With the lawsuit, shareholding is terminated by transferring the movable or immovable subject to common ownership or joint ownership to the private property of the stakeholders.
For the movable and immovable properties other than the values that can be shared, the partnership is eliminated by sale for those who cannot be separated exactly. On the other hand, if the material sharing of the property causes a significant loss of value in the property, the judge decides to sell the property subject to shared ownership by auction instead of material sharing. The court that decides on the procedure of sale through auction for sharing; If all stakeholders give their consent, it may decide that the increase will be made only among the stakeholders, or instead, it may be appropriate to make the increase publicly. Therefore, when even one of the stakeholders does not consent to the increase being made only among the stakeholders, the increase should now be made publicly.
Turkish Civil Code, which defines the joint ownership in cooperation,
“Article 701- The ownership of those who own the goods together due to the community formed pursuant to the law or the contracts stipulated in the law is the joint ownership.
’’In the joint ownership, the partners do not have a determined share, and the rights of each of them are common to all the goods entering the partnership’’. This provision is supreme. Unless otherwise stipulated in accordance with Article 703 of the Turkish Civil Code, the jointly allocation of ownership will be made in accordance with the provisions of common ownership.
The lawsuit has similar consequences for all stakeholders and is opened by any stakeholder against all stakeholders. All stakeholders should be included in the case, and in case of death of one of the stakeholders, all heirs should be included in the case. The case must be filed at the law court of peace where the movable / immovable is located.
In the event that movable and immovable properties are the subject of a joint sharing case; If these properties are located in the same place, the lawsuit shall be filed at that location and if the movable and immovable properties are located in separate places, the defendant's settlement court for the movables and for the immovables at the court of the place where the immovable is located shall be the competent court.
The case is subject to simple trial procedure. The exchange of petitions ends with the submission of a petition and response in the simple trial procedure. According to statistics, the duration of the case varies between 8 and 56 months, and it is concluded in an average of 32.44 months.