The legislator has arranged the right of pledge by dividing it into two in terms of movable and immovable.
"Immovable Pledge" is a right that is regulated as a separate section within the limited real rights in our Turkish Civil Code. In the law, it is the right that can be established only on the registered immovables and in the form of mortgage, mortgaged bond or annuity charge bonds, in case the debt is not fulfilled, it is the right that gives the creditor the opportunity to sell the pledged thing through execution and collect the purchase price first.
Immovable pledge is not used only to secure the receivable. It also serves for the circulation of the immovable in return for its value in the commercial marke. Mortgaged bonds and annuity charge bonds are arranged for this purpose.By means of these valuable papers, circulation is provided in the market in proportion to the value of the property.
In order to establish an immovable pledge, the receivable does not have to be born. The parties may establish an immovable pledge even for a claim that may arise in the future. However, since it is a right dependent on the receivable, the end of the receivable will also end the debt. It is also possible for one or more immovables to be pledged for the same receivable in the presence of conditions.
In the annuity charge bond, a limited liability arises only with the value of the immovable subject to pledge. In the mortgaged bond, the debtor continues to be a personal debtor in terms of the part that cannot be met from the immovable value. Changing the owner of the immovable property in annuity charge bond does not terminate the pledge right. The person who owns the immovable is responsible for the debt as much as the amount written in annuity charge bond.
There are three principles on the immovable property. These are the principles of "certainty", "publicity", "fixed degree".
One of the basic principles of immovable property is "certainty". It is important that the immovable pledge, which restricts the property right, which is listed among personal rights in the Constitution, is definite or determinable. In other words, the right of pledge cannot be established on the immovables belonging to persons without determining any amount.
If it is not possible to determine the amount to be received completely, it is possible to establish a pledge on the immovable property by determining an upper limit.
If the amount of receivable is certain, a principal pledge can be established.The amount of receivable can be determined, but if not certain, an upper limit pledge can be established.
In Article 875 of the Turkish Civil Code, the content of the assurance that the immovable pledge will provide to the creditor is stated.
These are principal, follow-up expenses and default interest, three-year interest due until the date when the bankruptcy is opened or the pledge is requested to be liquidated, and the interest starting from the last term.
It is also stated that the interest rate determined between the parties cannot be increased to the detriment of subsequent creditors.
In the upper limit mortgage, it is the most important difference that these matters are included in the scope by foreseen in advance when the pledge is established and that the creditor can collect up to the upper limit limit even if these amounts are higher in the liquidation phase.
Therefore, when establishing an upper limit mortgage, the credit items included in determining the upper limit should be well calculated.
Because, unlike the principal mortgage, after the upper limit mortgage is established, the creditor's main debt, interest, execution expenses or others will not be requested even if they exceed the limit.
In article 876 of the TCC, the compulsory expenses incurred for the immovable subject to pledge are also regulated by the legislator.It was stated that especially the expenses spent for insurance can be collected under any condition and without being subject to registration.
TCC Article 876- If the creditor has incurred a compulsory expense for the protection of the pledged immovable and especially if has paid the insurance premiums of the owner, the receivables arising from this benefit from the assurance just like the pledged receivable without the need for registration.
As it is known, immovable pledge can only be applied to receivables determined in Turkish Lira. It is not possible to establish pledge on immovables in foreign currency. (TMK article 851). However, the legislator made it possible to establish a pledge right in foreign currency by making an exception in terms of foreign currency loans granted by credit institutions in Article 851/2 of the TMK.
Immovable pledge can be established in foreign currency to secure loans made in foreign currency or in foreign currency by credit institutions operating in the country or abroad.
In this case, the amount expressed by each degree is shown over the type of money in which the pledged receivable is determined.However, it cannot be pledged using more than one type of currency at the same level. (TMK article 851/2)
In addition, if a pledge established in foreign currency becomes vacant, Turkish Lira or foreign currency may be decided while re-establishing the right of pledge.In the event that the degree of pledge established in Turkish Lira becomes vacant, it is possible to establish the pledge right in foreign currency.
Döviz cinsinden ipotekli tahvil ve faiz ödemeli tahvil tespiti mümkündür.
In the pledge of the immovable property, if the receivable is not paid on due date, no agreement can be made that the pledged property will be given in full. If put, it is invalid.
However, movable pledges subject to pledge agreements within the scope of Article 14 of the Movable Pledge in Commercial Transactions Law No. 6750 are exempted.
In Article 14 of the Law No. 6750, optional rights are granted to the creditor in case of default of the debtor. In the event that the pledgee is the first creditor, the right to request the transfer of ownership of the pledged movable is granted according to Article 24 of the Execution and Bankruptcy Law. There is no such exception in the immovable pledge. In case of default of the debtor, the pledge creditor has no right to demand the transfer of ownership of the pledged immovable property.
In order for the immovable pledge to be established, the form condition is required. The pledge agreement must be made officially.
In immovables subject to shared ownership, each stakeholder can establish pledge rights over their own shares. However, the shared situation must have been entered in the deed. After a stakeholder establishes a pledge right on her/his own share, other stakeholders cannot come together and establish a pledge right on the entire immovable property.
In the pledge of the immovable that has not been transferred to shared ownership but is subject to the right of joint ownership, the right of pledge may be established in the name of all owners and to cover the entire property.
It is possible to pledge more than one immovable for a claim.
However, if all the immovables belong to the same person or if the immovable property owners are jointly responsible for the debt, a single pledge right covering more than one immovable can be established. In this case, which is called joint pledge or collective pledge, each immovable constitutes the guarantee for all receivables. Therefore, if the creditor obtains all of her/his receivables from the sale of a single immovable, the pledge right on other immovables will automatically terminate.
In case of joint pledge, the executive director decides which immovable will be sold first. The pledge creditor has to demand the sale of all immovables.
In cases other than joint pledge, it is obligatory to establish a separate pledge right by indicating the amount of debt to cover each property.
In accordance with the principle of publicity, it cannot be claimed that the right of pledge registered in the land registry is not known by third parties. It is not considered within the scope of good intention. However, if the pledge is abandoned from the registry wrongfully, the trust of the well-intentioned persons to the registry is preserved.
During the pledge, lapse of Time is not applied for receivables secured with immovable pledge.
Fixed degree system has been adopted in our law.
According to this system, no mortgage degree can advance to a rank higher than its, but vacant, unless the owner of the immovable property gives the right to advance to the vacant degree separately and clearly. It is possible to give the right to advance to the vacant degree while the pledge is established, and it is possible to give it later with an additional contract to be made officially and in writing.
It has been accepted that the lower level creditors cannot benefit from the sale value of the immovable unless the creditors of the previous degree in the fixed degree system collect their receivables.
However, when the pledge right of any degree expires, the owner can establish another pledge right on these vacant degrees and does not need the approval of the pledge creditors at the next degree.
While determining fixed degrees, the owner can also specify empty degrees and keep some of them vacant.
With this method called hidden degree, the owner will be able to divide and use the vacant degrees again for their possible needs in the future.
It is possible to establish secondary degrees within the same pledge degree. However, in this case, it is necessary not to exceed the hypothetical degree of the degree.
After the immovable is foreclosed into money, no additional money is allocated and stored for the degrees that are kept empty. The money is distributed without calculating the empty degrees and the amounts that do not fill the hypothetical part of any degree.
The legislator also regulated the way of obtaining loans for the improvement of the soil.
In this case, it is regulated that the right to demand the registration of the pledge right arises in favor of the creditor, in a way that avoids all the pledge rights of others before its.
With the vanishment of the immovable, the right of pledge will end. It also ends with the registration of the expropriation decision.
In this case, there are opinions that accept that the pledge continues on the expropriation amount as in the insurance value.
According to Article 45 of our Enforcement and Bankruptcy Law, the receivables pledged with immovable property must first be subject to follow-up by foreclosing the pledge into money.
It has been deemed appropriate that belief agreements, which are frequently encountered in practice and which are actually carried out for the purpose of establishing pledge rights, but to which ownership are transferred, be handled under a separate topic.