Department: PRIVATE LAW

Department: PRIVATE LAW

Program: Non-Thesis Master’s Program in Private Law

Project Supervisor: Assoc. Prof. Dr. Cem AKBIYIK

JUNE 2022

C O N T E N T S

LIST OF ABBREVIATIONS ....................................................................................................1 ABSTRACT.........................................................................................................................................4SUMMARY............................................................................................................................5 PREFACE......................................................................................................................................6INTRODUCTION.........................................................................................................................................7

CHAPTER ONE

THE LAWSUIT FOR DISSOLUTION OF PARTNERSHIP

1.1. Partition of the Property Subject to Co-ownership.......................................................8

1.1.1. Consensual Partition..............................................................................................................9

1.1.2. Judicial Partition ...........................................................................................................10

1.2. Partition in Kind (Division)............................................................................................11

1.3. Partition by Conversion into Cash (Division by Sale) ...........................................16

1.4. Partition by Conversion into Condominium...........................................................16

1.5. Cases Where Dissolution of Partnership Cannot be Requested ............................. 19

1.5.1. The Property under Co-ownership Being Dedicated to a Permanent Purpose.......................................... 20

CHAPTER TWO

EXECUTION OF THE LAWSUIT FOR DISSOLUTION OF PARTNERSHIP

2.1. Examination of the Lawsuit in Terms of Procedural Provisions ..............................21

2.1.1. Competent Court ....................................................................................................21

2.1.2. Authorized Court ........................................................................................................21

2.1.3. Capacity of Plaintiff ..............................................................................................................22

2.1.4. Capacity of Defendant...............................................................................................................25

2.1.5. Prejudicial Issue ........................................................................................................26

2.1.6. Mediation ...........................................................................................................26

2.2. Decisions That Can Be Rendered as a Result of the Lawsuit..................................................27

2.3. Legal Remedies Available Against the Decision ........................................................28

2.3.1. Ordinary Legal Remedies.........................................................................................32

2.3.1.1. Appellate Review.........................................................................................32

3.3.1.2. Appeal to the Court of Cassation........................................................................32

3.3.2. Extraordinary Legal Remedies.................................................................................32

3.3.2.1. Appeal in the Interest of Law........................................................................33

3.3.2.2. Retrial (Renewal of Proceedings)................................................................34

3.4. Filing Fees, Litigation Expenses, and Attorney’s Fees .......................................35

3.4.1. Filing Fees......................................................................................................36

3.4.2. Litigation Expenses............................................................................................37

3.4.3. Attorney’s Fees.....................................................................................................37

3.5. In General ..............................................................................................................37

3.6. Sales Office........................................................................................................38

3.7. Sales Process.................................................................................................................38

3.7.1. Sale of Movables................................................................................................38

3.7.1.1. Preparation for Auction.........................................................................................38

3.7.1.1.1. Auction Announcement ..............................................................................39

3.7.1.1.2. Auction Specifications....................................................................................39

3.7.1.1.3. Conducting the Auction ................................................................................40

3.7.1.1.4. Results of the Auction .................................................................................640

3.7.2. Sale of Immovables ..........................................................................................40

3.7.2.1. Preparation for Auction.........................................................................................40

3.7.2.1.1. Auction Announcement ..............................................................................40

3.7.2.1.2. Auction Specifications....................................................................................40

3.7.2.1.2.1. List of Encumbrances.......................................................................40

3.7.2.1.2.2. Valuation....................................................................................40

3.7.2.1.3. Conducting the Auction ................................................................................40

3.7.2.1.4. Results of the Auction .................................................................................47

3.8. Annulment of the Tender.............................................................................................47

3.8.1. Grounds for Annulment of the Tender.....................................................................47

3.8.2. Persons Entitled to Request Annulment of the Tender ................................................47

3.8.3. Time Limit for Requesting Annulment of the Tender .............................................69

3.8.4. Competent and Authorized Court for Annulment of the Tender................................47

3.8.5. Acceptance and Rejection of the Request for Annulment of the Tender.........................47

3.9. Distribution of Proceeds ............................................................................................47

CONCLUSION ………………………………………………………………………………..48

BIBLIOGRAPHY..........................................................................................................................50

CURRICULUM VITAE ...........................................................................................................51

ABSTRACT

The subject of this study is the “Lawsuit for Dissolution of Partnership.” The “Lawsuit for Dissolution of Partnership” has been regulated within the framework of concrete cases as one of the ways to terminate co-ownership, and in this context, types of partition have been discussed. Firstly, the situations of partition in kind, partition by conversion into cash, and partition by conversion into condominium ownership are emphasized. Finally, the “Lawsuit for Dissolution of Partnership” has been addressed in terms of procedural provisions; the thesis is concluded by covering the period from the filing of the lawsuit to its conclusion, the judicial and procedural actions taken during this period, the drafting of the reasoned decision, litigation costs, and the execution of the lawsuit. One of the objectives of our thesis is to show that the authority to file a lawsuit for the dissolution of partnership granted to a creditor of one of the owners in cases of joint ownership (elbirliği mülkiyeti) can have adverse consequences for other owners, and to draw attention to the fact that, if possible, the authority to file a lawsuit for the conversion of joint ownership into co-ownership (paylı mülkiyet) should primarily be granted to the creditor. Keywords: Lawsuit for Dissolution of Partnership, Suit for Partition (İzale-i Şüyuu), Ownership, Joint Ownership, Co-ownership

SUMMARY ELIMINATING THE CASE OF THE PARTNERSHIP

The thesis subject is “The Case of Elimination of Joint Ownership.” “The Case of Elimination of Joint Ownership” is considered in the light of theoretical information and within the frame of concrete cases as one of the termination forms of common ownership; in this context, the types of partition are examined. Firstly, the partition in kind, partition through money, and partition through conversion to flat ownership are discussed in this section. In the last part, “The Case of Elimination of Joint Ownership” is discussed in accordance with the provisions of the procedure and trial, procedure proceedings, reasoned decision in writing, and litigation costs in the process up to the conclusion of the case; finally, the thesis is concluded by referring to the execution of the case. The main aims of the thesis are to show that the power of litigation for the case of elimination of joint ownership in the circumstance of joint ownership may have adverse consequences for other owners and to draw attention to the fact that, if possible, the power of litigation for conversion of the joint ownership into common ownership (the dissolution of the subsidiary) should be given to the creditor. Keywords: The Case of Elimination of Joint Ownership, Suit of Partition, Ownership, Joint Ownership, Common Ownership

PREFACE

The subject of our thesis is the “Lawsuit for Dissolution of Partnership.” In the conclusion section, the authority to file a lawsuit granted to a creditor in a dissolution of partnership case has been examined. In this context, starting from the basic subject regarding the concepts of ownership and joint ownership, general information has been provided, the lawsuit for dissolution of partnership has been explained comprehensively, and matters regarding procedure and execution have been covered in the final section.

Gizem GONCE

Istanbul, 2022

INTRODUCTION

Purpose of the Subject: The lawsuit for dissolution of partnership is a type of lawsuit that contains unique features, is subject to procedural applications different from many other types of lawsuits, and in its essence, constitutes one of the best examples of joint ownership. The purpose of our subject is to explain all these features in detail, to make them understandable, and to emphasize their importance for the holders of property rights in terms of their consequences. Importance of the Subject: The lawsuit for dissolution of partnership relates to the termination of joint ownership. As a result of this lawsuit, multiple owners terminate the ownership right they hold together and transition to individual ownership. In this respect, the fact that the ownership rights, which are universal and absolute rights in rem, of the partners in joint ownership (elbirliği mülkiyeti) and the co-owners in co-ownership (paylı mülkiyet) are directly affected, shows the importance of the subject. Place of the Subject in Law: The lawsuit for dissolution of partnership falls within the scope of Civil Law in the field of private law in our Turkish legal system. Regulations regarding its substance are included in Article 698 and subsequent articles of the Turkish Civil Code No. 4721. Regulations regarding its procedural provisions are included in the Code of Civil Procedure No. 6100, and regulations regarding its execution are included in the Enforcement and Bankruptcy Law No. 2004. Limitation of the Subject: Our subject is quite extensive due to its importance in our legal system. Therefore, in our study, firstly, the topics of joint ownership and co-ownership have been addressed under the heading of joint ownership and explained in detail. In the second chapter, the “Lawsuit for Dissolution of Partnership,” which constitutes the title of our study, has been examined in terms of its substance within the framework of Articles 698 et seq. of the Turkish Civil Code (TMK). In the third chapter, our study has been addressed within the scope of procedural and execution provisions, and this study has been created by limiting it in this way.

THE LAWSUIT FOR DISSOLUTION OF PARTNERSHIP

Legal Procedures to be Applied in the Partition of Property Subject to Co-ownership

There are certain legal procedures to be applied under the Turkish Civil Code in cases where it is decided to terminate the co-ownership existing between co-owners and to partition the property among them in practice. Namely; the partition of property by the unanimous agreement of all co-owners is called consensual partition. However, if an agreement cannot be reached among the co-owners, the situation where partition is realized by at least one of the co-owners filing a lawsuit is called judicial partition.

Under the Turkish Civil Code, a lawsuit for dissolution of partnership must be filed for the partition and termination of an immovable property under co-ownership. In this lawsuit, there are three types of partition methods following the judge's decision to accept the case. The first method, partition in kind (taksim), the second method, partition by conversion into cash (nakden taksim), and the third method, partition by conversion into condominium, are accepted. Each method has its own procedures and rules, and a decision must be made within the framework of rules that will best meet the needs of the parties and protect their interests to a high degree. Otherwise, the reality that co-owners may suffer a loss of rights will arise.

Consensual Partition Situation of Co-owners

Co-owners have the right to partition the property subject to inheritance by making a partition agreement through a joint decision. Partition of the property subject to inheritance by the unanimous decision of all co-owners is possible. If even one of the co-owners does not have the will to partition, or if the conditions for partition are not suitable for the partition of the property subject to the partnership, partition is carried out through a lawsuit. Partition made by co-owners reaching an agreement among themselves is called consensual partition. In practice, consensual partition can be done not only in the form of partition in kind but also by selling the property subject to inheritance and sharing the sale proceeds among the co-owners. Article 705 of the Turkish Civil Code, titled "Acquisition of Immovable Property," states: "Acquisition of immovable property is by registration. In cases of inheritance, court decision, forced execution, occupation, expropriation, and other cases provided for in the law, ownership is acquired before registration. However, in these cases, the owner's ability to perform disposition transactions depends on the ownership being registered in the land registry." For a partition agreement to be valid, it must be made in an official written form. Partition agreements that are not made in the official written form regulated under the Turkish Civil Code are not considered valid. Registration of the part of the immovable property dedicated by the co-owners to themselves cannot be performed because it has not been done in an official written form.

Judicial Partition Situation of Co-owners

If a partition agreement is made by the co-owners reaching an agreement on the dissolution of co-ownership, there is no need for judicial partition. When co-owners cannot reach an agreement on the dissolution of co-ownership, co-ownership is terminated through a lawsuit. However, opinions in the doctrine and decisions of the Court of Cassation regarding the nature of the lawsuit differ. While some proponents express that this lawsuit is a performance lawsuit (eda davası), others state that it is not a performance lawsuit but rather a constitutive lawsuit (yenilik doğuran dava).

Article 105 of the Code of Civil Procedure regulates the content of a performance lawsuit in detail. Namely;

Performance lawsuit

Article 105- (1) Through a performance lawsuit, it is requested from the court that the defendant be sentenced to give, do, or not do something.

The nature of the lawsuit is specified with this provision. In a lawsuit for dissolution of partnership, the most common issue we encounter is that the co-owner who requests the partition of the property subject to co-ownership acquires the right to request the partition of the property subject to ownership from other co-owners by applying to the Civil Court of Peace. Since the termination of the ownership right established in a common way will be in question as a result of the lawsuit for dissolution of partnership, it has a constitutive (yenilik doğuran) nature, even if it is destructive (hüküm bozucu) within the framework of the rules regulated under the Code of Civil Procedure. The lawsuit for dissolution of partnership, besides having a special place among all other types of lawsuits, bears both qualities and is in the nature of a constitutive performance lawsuit. In the lawsuit for dissolution of partnership, which appears as a state of termination of co-ownership, co-ownership can be terminated through a lawsuit if the co-owners cannot reach an agreement; in other words, it can be terminated in a judicial way.

Article 698 of the Turkish Civil Code, titled "Termination of Co-ownership," states: Unless there is a requirement for a legal transaction or a duty to maintain co-ownership because the property under co-ownership is dedicated to a permanent purpose, each of the co-owners has the right to request the partition of the property.

Termination of co-ownership

Request for partition

Turkish Civil Code Article 698- Unless there is a requirement for a legal transaction or a duty to maintain co-ownership because the property under co-ownership is dedicated to a permanent purpose, each of the co-owners may request the partition of the property. The right to request partition can be limited by a legal transaction for a maximum period of ten years. Contracts regarding the continuation of co-ownership in immovables are subject to official form and can be annotated in the land registry. A request for partition cannot be made at an inappropriate time.

Every co-owner has the right to request the termination of joint ownership in accordance with the clear provision of the law. This request of the co-owners is accepted as a constitutive right that is destructive in nature (bozucu nitelikte yenilik doğuran bir hak). The main reason for it being destructive is that it is a case where the partnership between the co-owners ends as a result of the request of one co-owner. The ownership rights of the co-owners in co-ownership over their own shares are restricted by the ownership rights of the other co-owners. If there is no legal obstacle to the continuation of the partnership, a lawsuit for dissolution of partnership can be filed. If one of the co-owners uses their right to file a lawsuit for dissolution of partnership, besides the fact that the responsibilities of the other co-owners regarding partition continue, this lawsuit is directed at all co-owners.

Partition (Division) by Kind by Stakeholders

This scenario occurs when the property intended to be shared among stakeholders is divided into parts, which are then distributed to the stakeholders in proportion to their shares, allowing a single person to acquire sole ownership. In partitions made through division in kind, the individual acquires the status of sole owner. Under the Turkish Civil Code, several conditions are set forth for the partition of inherited property in kind among stakeholders. The most important rule for partition in kind is that it can only be applied if there is no reduction in the financial value of the property subject to partition. The second rule to be considered is whether the property in question is suitable for partition in kind. If a stakeholder or stakeholders file a lawsuit for the termination of co-ownership in a Civil Court of Peace due to the division of the property, the first issue the judge must examine is whether the property is suitable for division in kind. If the property subject to the lawsuit for termination of co-ownership is real estate, it is requested that the title deed records and cadastral maps belonging to the real estate be sent via a writ issued to the relevant Land Registry Office. Upon the sending of the title deed information and details by the relevant Land Registry Office, if any errors or deficiencies are detected, the judge of the Civil Court of Peace grants the parties time to correct them. It is required that all stakeholders have not entered into a contract in which they have agreed not to refuse or to accept partition in kind, in other words, distribution. In the presence of such a contract, the judge of the Civil Court of Peace can no longer decide on the partition of the property in kind. The fact that the phrase "if no agreement can be reached on the form of partition" is explicitly included in the text of the article in the Turkish Civil Code draws attention to the existence of the common intent of the stakeholders. In cases where there are requests from stakeholders for partition by sale and partition in kind in a lawsuit for termination of co-ownership, if the partition of the real estate in question is possible in light of the information and documents sent by the Land Registry Office, then the fact that the lawsuit was filed by a stakeholder requesting partition by sale will not be taken into account, and termination of co-ownership by partition in kind may be possible. In lawsuits for termination of co-ownership, the priority is always partition in kind. If the plaintiff party has requested partition by sale in a lawsuit for termination of co-ownership and the defendant party has a request for partition in kind, since the priority is partition in kind, the Civil Court of Peace decides to terminate co-ownership by partition in kind if the conditions are met.

Article 699 of the Turkish Civil Code, titled "Form of Partition," states: Partition is carried out by dividing the property in kind or by selling it through negotiation or auction and dividing the proceeds. If no agreement can be reached on the form of partition, upon the request of one of the stakeholders, the judge decides to divide and distribute the property in kind; if the values of the divided parts do not correspond, equalization is ensured by adding money to the part with the lower value. If the request for division is not deemed appropriate to the situation and conditions, and especially if it is not possible to divide the co-owned property without a significant loss of value, a sale by public auction is ordered. Deciding to conduct the sale by auction among the stakeholders depends on the consent of all stakeholders.

For the partition of inherited property through division in kind, the existence of a contract among the stakeholders is primarily sought. If the contract made between the stakeholders is deemed appropriate by the judge of the Civil Court of Peace, a decision is made within the framework of the agreement. As I have stated in detail above, the judge of the Civil Court of Peace makes a decision within the framework of the agreement among the stakeholders after examining the existence of conditions sufficient for the partition of the inherited real estate in kind.

When the judge of the Civil Court of Peace decides to terminate co-ownership by dividing the inherited property in kind among the stakeholders, the divided parts are allocated to the ownership of the relevant stakeholders. In practice, some disputes arise if the divided parts allocated to the stakeholders are not equal. In this regard, if the values of the parts divided by the Civil Court of Peace judge do not equal each other, equalization is provided by making a cash payment for the part with the lower value. In a lawsuit for termination of co-ownership, if a dispute arises regarding which stakeholder will receive the part to be equalized, the dispute is resolved by drawing lots. If there is no contract among the stakeholders, the judge of the Civil Court of Peace cannot make a decision by giving the entire real estate subject to the lawsuit to one or a few stakeholders. When the decision made by the Civil Court of Peace judge for the termination of co-ownership by partitioning the real estate in kind is finalized without any objection from all plaintiff and defendant parties, the reasoned decision and the finalization annotation are sent to the relevant Land Registry Office where the real estate is located. In the Turkish Civil Code, partition is performed by dividing the property in kind or by selling it through negotiation or public auction and dividing the proceeds. If it is possible to divide the property subject to the termination of co-ownership in kind among the stakeholders, co-ownership is terminated via this method. However, in cases where partition in kind is not possible, a decision is made to sell the property by public auction and divide the proceeds. For example, the physical partition of a car among stakeholders is not possible. However, if the conditions of the real estate are suitable, it can be partitioned in kind by dividing it into parcels. A technical expert examination is conducted regarding whether partition of the real estate in kind is possible, and a partition project is prepared regarding the real estate subject to the lawsuit. According to this prepared project, it is investigated whether the partition is possible according to the Zoning Law and relevant regulations from the Municipality or Provincial Administrative Board in the place where the real estate subject to the lawsuit is located. As a result of this investigation, if it is not possible to partition the real estate in kind, a decision is made to terminate co-ownership by sale.

In the termination of co-ownership by dividing the real estate subject to the lawsuit in kind, disputes may arise regarding which stakeholder will receive the divided parts. For example, problems regarding the sharing of the part near the stream bed and the parts near the road arise in practice during the division of the real estate subject to the lawsuit. In the established jurisprudence of the Court of Cassation, the lottery method is applied in the resolution of these problems. The allocation of the parts divided among the stakeholders is done by a lottery method drawn in the presence of those present at the hearing. Although there is no mandatory provision regarding this matter within the framework of the Turkish Civil Code, the judge of the Civil Court of Peace can directly perform the allocation operation regarding the partition of the property subject to the lawsuit among the stakeholders. However, the lottery method is considered appropriate as it is a method we encounter more frequently in practice where the parties can exercise their will. As I have stated in detail, the judge of the Civil Court of Peace has discretion regarding the form of partition of the real estate subject to the lawsuit. This authority granted to the Civil Court of Peace judge under the Turkish Civil Code is an authority limited by the articles of the law. The main goal in lawsuits for termination of co-ownership is for the stakeholders to reach a conclusion within the framework of a positive agreement ground by reaching an agreement on the property subject to the lawsuit. In a lawsuit for termination of co-ownership, compared to other types of lawsuits, the most important point is undoubtedly that the distinction between plaintiff and defendant does not create a difference in terms of the result in this lawsuit. Namely; in a lawsuit for termination of co-ownership, the plaintiff and defendant have the same results at the judgment stage of the case. For this reason, if there is a contract among the stakeholders regarding the partition of the real estate subject to the lawsuit in lawsuits for termination of co-ownership; the contract must be adhered to by the judge of the Civil Court of Peace. If there is a decision taken according to the unanimity procedure among the stakeholders regarding the termination of co-ownership, the judge of the Civil Court of Peace cannot establish a provision in the opposite direction. For example; if there is an agreement among the stakeholders for partition in kind but a dispute has arisen regarding the parts to be given to the stakeholders, the judge of the Civil Court of Peace cannot decide to terminate co-ownership by sale. In another example; if an agreement has been reached on the partition of the real estate subject to the lawsuit via public auction but there is a dispute regarding whether the auction will be held among the stakeholders or open to everyone, the judge of the Civil Court of Peace is only authorized to resolve the issue on which there is no agreement. In this regard, according to procedural rules, he cannot decide on partition in kind or sale by negotiation. The Civil Court of Peace must comply with the common decisions taken by the stakeholders. The decision rendered by the judge of the Civil Court of Peace in lawsuits for termination of co-ownership does not have a constitutive feature within the framework of procedural rules. If the real estate subject to the lawsuit is not registered by writing a writ to the relevant Land Registry Office by the Civil Court of Peace judge by partitioning it, the divided parts do not have a legal meaning. One of the most important issues in lawsuits for termination of co-ownership is the transition of ownership to the stakeholders.

According to the generally accepted rule within the framework of the Turkish Civil Code; the ownership of movable property passes with the transfer of possession, and the ownership of real estate passes by being registered in the land registry. However, it is also possible for real estate to be acquired without registration. In the case of partition of movable property in kind, ownership passes with the transfer of possession. For example, the partition of agricultural products such as olive oil and wheat. There is no explicit provision in the Turkish Civil Code regarding the transfer of ownership by court decision. As is the case with acquisition before registration in real estate, there is no state of acquisition before the transfer of possession for movable property. However, there are some differences regarding the transfer of ownership of real estate.

Article 716 of the Turkish Civil Code, titled "Right to request registration," states: "A person who has a personal right to request the owner to register the ownership in their own name based on a legal reason that will be the basis for the acquisition of ownership may request from the judge the transfer of ownership by judgment if the owner avoids it.

A person who acquires the ownership of a real estate based on occupation, inheritance, expropriation, compulsory execution, or a court decision can have the registration made directly. Changes that occur in the ownership of a real estate due to the property regime between spouses are registered directly in the land registry upon the request of one of the spouses."

This issue has been clarified. A person who acquires the ownership of a real estate based on occupation, inheritance, expropriation, compulsory execution, or a court decision has the right to have the registration made directly.

Article 705 of the Turkish Civil Code, titled "Registration," states: "The acquisition of real estate ownership occurs with registration. In cases of inheritance, court decision, compulsory execution, occupation, expropriation, and other cases provided for by law, ownership is acquired before registration. However, in these cases, the owner's ability to perform disposal transactions depends on the ownership being registered in the land registry."

The provision clearly regulates this matter. In accordance with the regulation that ownership is acquired before registration in cases of inheritance, court decision, compulsory execution, occupation, expropriation, and other cases provided for by law, ownership will pass to the stakeholders in the decision given by way of allocation regarding the partition of the real estate subject to the lawsuit in kind.

Article 134 of the Enforcement and Bankruptcy Law, titled "Result and cancellation of the tender," states: "The buyer to whom the real estate is tendered by the enforcement office acquires the ownership of that real estate," and with this provision, ownership is realized the moment the tender is made to the buyer while terminating co-ownership in a sale by public auction. This regulation has been made for real estate. In co-ownership (joint ownership), the procedures and principles regarding shared ownership are applied. However, first, the co-ownership relationship subject to joint ownership must be eliminated. By filing a lawsuit, the transformation of joint ownership into shared ownership and the termination of co-ownership should be requested. This is only possible in inheritance co-ownership. There is no question of converting joint ownership other than inheritance co-ownership into shared ownership. It is possible to file a lawsuit for termination of co-ownership with the request of the heirs for the transition to shared ownership. It is carried out within the framework of the provisions regarding shared ownership regulated in the Turkish Civil Code.

In accordance with Article 648 of the Turkish Civil Code, titled "Participation of a Trustee in Partition," which states: "A creditor who has taken over or seized the share of an heir in an opened inheritance, or who holds a certificate of insolvency against the heir, may request the magistrate to appoint a trustee to participate in the partition on behalf of this heir," the rights of creditors are protected.

Stakeholders' Partition by Liquidation (Partition in Cash) Situation

In accordance with Article 699 of the Turkish Civil Code, titled "Form of Partition," which states: "Partition is carried out by dividing the property in kind or by selling it through negotiation or auction and dividing the proceeds. If no agreement can be reached on the form of partition, upon the request of one of the stakeholders, the judge decides to divide and distribute the property in kind; if the values of the divided parts do not correspond, equalization is ensured by adding money to the part with the lower value. If the request for division is not deemed appropriate to the situation and conditions, and especially if it is not possible to divide the co-owned property without a significant loss of value, a sale by public auction is ordered. Deciding to conduct the sale by auction among the stakeholders depends on the consent of all stakeholders," what needs to be done regarding the request for division is regulated. If the request for division is not deemed appropriate to the situation and conditions under the Turkish Civil Code, and especially if it is not possible to divide the co-owned property without a significant loss of value, then sale by public auction is possible. If it is not possible to divide the real estate subject to the lawsuit in kind, the termination of co-ownership is carried out by selling the real estate by public auction. It is stated that it will be ordered within the framework of the Turkish Civil Code, and a mandatory provision has been used. However, it should be importantly noted that; the judge of the Civil Court of Peace has discretion regarding the appropriateness of the situation and conditions. As I have stated in detail above, the judge of the Civil Court of Peace makes a decision by evaluating according to the qualifications of the real estate subject to the lawsuit and the characteristics of the concrete case. To give an example; if the value of the partitioned property is higher than the sum of the values of the parts separately in the event of partition, this situation is not suitable for partition in kind. The sale of the real estate by auction can be done open to everyone as well as only among the stakeholders.

In the 3rd clause of Article 699 of the Turkish Civil Code, titled "Form of Partition," it is stipulated that: "If the request for division is not deemed appropriate to the situation and conditions, and especially if it is not possible to divide the co-owned property without a significant loss of value, a sale by public auction is ordered. Deciding to conduct the sale by auction among the stakeholders depends on the consent of all stakeholders," requiring the express consent of all stakeholders. The judge of the Civil Court of Peace also has the authority to decide on sale by negotiation if requested. However, in this regard, there must not have been an agreement or a decision made to the contrary by the stakeholders.

Partition by Conversion to Condominium Ownership

It is also possible to partition the co-owned property subject to the lawsuit by converting it into condominium ownership, in addition to partition in kind and in cash. Although this issue is not encountered very often in practice, it is regulated in detail in the Condominium Ownership Law.

Article 10 of the Condominium Ownership Law, titled "Establishment of Condominium Ownership and Floor Easement," states: "Condominium ownership and floor easement arise with an official deed and registration in the land registry. Condominium ownership cannot be established on only one or a few parts of the main real estate without the entire main real estate being converted into condominium ownership (Condominium ownership).

(Amended third paragraph: 14/11/2007-5711/3 art.) While establishing condominium ownership, more than one independent section of the same type located adjacent to each other on the same floor, or multiple floors or sections of a structure that constitute an integrity in terms of economic or use such as a hotel, business, or commercial place, can be registered as a single independent section in the condominium register. For such a registration to be made, the appropriate alteration project and the occupancy permit document must have been submitted to the Land Registry Office.

(Amended fourth paragraph: 15/2/2018-7099/4 art.) Registration of condominium ownership can be made in accordance with the official deed drawn up by the title deed officer or according to the paragraphs below.

(Added paragraph: 15/2/2018-7099/4 art.) Provided that the independent sections falling to the rightful owners have been determined, the floor easement and condominium ownership establishment process regarding the building to be constructed based on the land share construction contract, land share transfer contract, or notary contract regarding the partition of independent sections signed between the landowner and the contractor is performed by the relevant administration upon the request of the contractor. In title deed registration procedures, the architectural project and management plan prepared in an electronic environment and approved by the relevant administration are taken as a basis. The owner's signature is not sought in the architectural project and management plan.(2)

(Added paragraph: 15/2/2018-7099/4 art.) (Amended sixth paragraph: 9/6/2021-7327/11 art.) All generic change procedures of structures for which an occupancy permit document has been issued are made ex officio. A registration notification is issued by the cadastre directorate according to the building application project and the occupancy permit document sent to the cadastre directorate in an electronic environment by uploading it to the Spatial Address Registration System by the administration authorized to issue the occupancy permit. Upon the registration notification sent to the land registry office, the generic change is registered ex officio without seeking any other document. If the real estate whose generic change has been made has a floor easement, it is converted into condominium ownership ex officio based on the official deed belonging to the registration of the floor easement and the documents written in Article 12, without seeking any other document. These procedures are exempt from the revolving fund service fee.

In lawsuits for termination of co-ownership on a real estate suitable for being subject to condominium ownership, if one of the heirs or co-owners requests that the partition be made by establishing condominium ownership and allocating independent sections, the judge may decide to convert the ownership of that real estate into condominium ownership based on the documents written in Article 12 and to allocate the independent sections to the partners separately by equalizing the shares.

(Additional paragraph: 14/11/2007-5711/3 art.) Independent units allocated for the expenditure of income on common expenses or for any other purpose of common use shall be registered in the condominium title register by writing the "numbers of the independent units" that benefit from them in the owner's section of these units. This fact shall be indicated in the declarations section of the independent units.”

Explanatory regulations have been introduced. In cases of elimination of co-ownership over an eligible immovable property that is not subject to condominium ownership, if one of the heirs or co-owners requests, upon their demand, that the partition be carried out by establishing condominium ownership and allocating the independent units, the judge of the Civil Court of Peace may decide to convert the ownership of the immovable property subject to the lawsuit into condominium ownership according to the documents in Article 12 of the Condominium Law and to allocate the independent units separately to each shareholder by equalizing the shares.

In Article 12 of the Condominium Law, titled "Establishment of Condominium Ownership"; “(Amended: 14/11/2007-5711/5 art.) For the establishment of condominium ownership, the owner of the main real estate or all of its shareholders must apply to the land registry office with the following documents regarding the conversion of that real estate into condominium ownership:

a) (Amended: 15/2/2018-7099/5 art.) An architectural project prepared by the project-author architect and approved by the authorized public institutions and organizations after obtaining the signatures of the owner or all shareholders of the main real estate, and sent electronically to the land registry office, clearly showing the external facades and internal layout of the building or buildings, the dimensions of the independent units, annexes, and common areas, the land shares calculated in proportion to the values according to the location and size of the independent units, the type such as floor, apartment, office, and their numbers starting from one and going in order, and the construction area of the independent units, along with the building occupancy permit.

b) A management plan prepared within the framework of the principles in Article 28 according to the usage style of the independent units, and in case of the existence of multiple buildings, according to the characteristics of these buildings, signed by the owner or owners establishing the condominium ownership.

c) (Repealed: 23/6/2009-5912/2 art.)

The application and documents have been regulated in detail.

Certain conditions are sought for the partition of the shared ownership subject to the lawsuit among the shareholders through conversion into condominium ownership. Primarily, the immovable subject to shared ownership must be suitable for conversion into condominium ownership. It is also not possible to rule for the conversion of an unsuitable immovable into condominium ownership. Furthermore, one or more of the shareholders must request partition through conversion into condominium ownership. It is not possible for the Civil Court of Peace judge to partition the co-ownership by converting it into condominium ownership if it is not requested. For partition by conversion into condominium ownership, the immovable subject to the lawsuit must have more than one independent unit. Thus, at least one independent unit must be allocated to each shareholder. If such a situation does not exist, partition by conversion into condominium ownership does not occur. This is also the case in the settled jurisprudence and practices of the Court of Cassation. Additionally, if the shareholders have explicit consent, one independent unit may be allocated to more than one shareholder. If there is a serious difference between the financial values of the independent units, equalization is performed by refunding the price.

Whether the immovable subject to the lawsuit is suitable for conversion into condominium ownership should be taken into account by evaluating the independent units separately and, if differences exist, by equalizing them along with their amounts. The judge of the Civil Court of Peace clarifies whether the immovable subject to the lawsuit can be allocated according to the share status of the shareholders by conducting an exploration and expert examination. For this reason, expert reports to be prepared by a committee of experts in their fields are important in the course of the lawsuit. In the partition of the immovable subject to the lawsuit by conversion into condominium ownership, the subject of equalization must be explained in detail through expert reports. The share and shareholders requesting partition by conversion into condominium ownership must submit the documents mentioned above in detail, which are regulated in Article 12 of the Condominium Law, to the file in the case of elimination of co-ownership. The shareholder who filed the lawsuit for the elimination of co-ownership and made the request by conversion into condominium ownership has the obligation to submit the documents. In practice, these deficiencies are remedied by the Civil Court of Peace during the lawsuit stage. In case of a dispute among the shareholders regarding which shareholder will be given which independent unit, the actual usage of the shareholders is considered.

The existence of the consent of the shareholders is also sought at the point of making the partition according to the actual situation of the shareholders. If there is no consent among the shareholders, the allocation process is performed by drawing lots. Following the decision of the Civil Court of Peace judge, the transition to condominium ownership takes place after the documents regulated in Article 12 of the Condominium Law are submitted to the relevant Land Registry Office.

Cases Where Elimination of Co-ownership Cannot Be Requested

If the partition of the property subject to inheritance, which is subject to shared ownership, is requested, the shareholder has certain limits in the exercise of this right. While the shareholder wants to exercise the right of partition, the property right of the other shareholders must also be protected. Contracts, along with laws, have an important place in protecting the boundaries between shareholders. As examples of limitations arising from laws, Article 7 of the Condominium Law, Article 34 of the Squatter (Gecekondu) Law, and Article 15 of the Zoning Law come to the fore.

Article 7 of the Condominium Law, titled Elimination of Co-ownership; “Elimination of co-ownership cannot be requested for real estate subject to condominium ownership or condominium easement. Independent units can be the subject of a lawsuit and enforcement proceedings as if they were an independent real estate; elimination of co-ownership can be requested for these.”

In Article 34 of the Squatter Law, titled Prevention of Acts Contrary to the Purpose of Allocation; (Amended first paragraph: 2/3/1988 - 3414/4 art.) Lands allocated by municipalities according to the provisions of this Law, structures, and immovable properties formed by buildings constructed on these lands, within 10 years from the date of allocation:

a) Cannot be transferred or assigned.

b) Cannot be encumbered with pledges and other real rights.

c) Cannot constitute the subject of a sales promise contract.

d) Cannot be the subject of a request for elimination of co-ownership by partition and sale.

e) Cannot be seized or occupied. However, provided that the provision of paragraph (e) is reserved, sales and transactions to be made due to death, retirement, transfer of duty, and mortgage receivables of Türkiye Emlak Kredi Bank or other institutions providing housing loans are not subject to these records. (Added: 2/3/1988 - 3414/4. art.) Provided that the periods for building construction in Article 27 are reserved, if all of the borrowing costs are paid within 20 years, all encumbrances are lifted. The exemptions in Article 33 are not applied in such transfers, assignments, and sales. From the price obtained from sales to be made due to mortgage receivables arising from this law, after the debts related to this law are deducted, and after the money spent by the owner for additional structures and facilities that they built at their own expense by obtaining permission from the municipality and the bank, provided that the land is not contrary to this law, is given to the relevant person, the remainder is deposited into the fund mentioned in Article 14. The portion of the sales price given to the relevant person according to this paragraph can also be seized due to their other debts.

Case Where Shared Property is Dedicated to a Continuous Purpose

In Article 698 of the Turkish Civil Code, titled Termination of Shared Ownership; “Unless there is an obligation to continue shared ownership due to a legal transaction or because the shared property is dedicated to a continuous purpose, each of the shareholders can request the partition of the property. The right to request partition can be limited to a maximum of ten years by a legal transaction. Contracts regarding the continuation of shared ownership in immovables are subject to official form and can be annotated in the land register. Partition cannot be requested at an inappropriate time.” Regulation has been introduced.

As can be understood from this law article, if the thing on which there is shared ownership is dedicated to a continuous purpose, partition can no longer be requested. To give an example; the fence, wall, or road separating two immovables is mentioned. In addition to the Turkish Civil Code imposing a condition of continuity, there is also a condition of necessity. It is also required that the immovable subject to shared ownership be of an inalienable nature among the shareholders. It is clear that agreements regarding the dedication of a property to a continuous purpose by the shareholders reaching an agreement among themselves will not be valid. There are also views in the doctrine that think the opposite of the views regarding the fact that an object should be permanently dedicated to a purpose in a real sense and independently by the shareholders. In practice, after the rights granted to the owner by the property right and the decisions that the shareholders will take by unanimity, it does not seem very possible to agree with the view that there cannot be a dedication to a continuous purpose by making a contract among the shareholders. However, one should always think according to the characteristics of the concrete case and the principle of honesty and equity rules regulated in Article 2 of the Turkish Civil Code.

PROCEDURAL RULES IN ELIMINATION OF CO-OWNERSHIP LAWSUITS

Determination of the Competent Court in Elimination of Co-ownership Lawsuits

It is important in which court the lawsuit will be filed in elimination of co-ownership lawsuits. In paragraph b of Article 4, titled Duty of Civil Courts of Peace, of the Code of Civil Procedure; “Lawsuits regarding the partition of movable and immovable property or rights and the elimination of co-ownership,” regulation has been introduced. In elimination of co-ownership lawsuits, the competent court is determined within the framework of general provisions. In Article 4 of the Code of Civil Procedure, civil courts of peace are the places where lawsuits regarding the partition of movable and immovable property or rights and the elimination of co-ownership are heard, regardless of the value or amount of the subject of the lawsuit. In the law article, the court authorized to hear the case is clearly stated as civil courts of peace. Courts of first instance or other courts are not authorized to hear elimination of co-ownership lawsuits.

Determination of the Authorized Court in Elimination of Co-ownership Lawsuits

In addition to specifying the competent court in elimination of co-ownership lawsuits, it is also important to know the authorized court. In the elimination of co-ownership lawsuit, the authorized court is determined within the framework of general provisions.

In Article 5 of the Code of Civil Procedure, titled Authorization; “The authorization of the courts is subject to the provisions in this Law, provided that the provisions regarding authorization in other laws are reserved.” has been regulated.

In Article 6 of the Code of Civil Procedure, titled General Authorized Court; “The general authorized court is the court of the place of residence of the defendant, natural or legal person, on the date the lawsuit is filed. (2) The place of residence is determined according to the provisions of the Turkish Civil Code No. 4721 dated 22/11/2001.” has been regulated.

In Article 7 of the Code of Civil Procedure, titled Authorization in Case of Multiple Defendants; “If there is more than one defendant, the lawsuit can be filed in the court of the place of residence of one of them. However, if a court carrying common authorization for all defendants is specified in the law according to the cause of the lawsuit, the case is heard in that place's court. In cases where there is more than one defendant, if it is understood by evidence or indications that the lawsuit was filed solely to bring one of the defendants to a court other than their own place of residence court, the court, upon the objection of the relevant defendant, separates the lawsuit against them and makes a decision of lack of authorization.” has been regulated.

If a court carrying common authorization for all defendants is specified in the Code of Civil Procedure according to the cause of the lawsuit, that place's court is authorized to hear the case. In practice, for lawsuits regarding immovables, Article 12 of the Code of Civil Procedure, titled Authorization in Lawsuits Arising from the Essence of the Immovable, is most applied. Namely; “In lawsuits regarding a real right on an immovable or lawsuits that may lead to a change in real right ownership, and in lawsuits regarding the possession of the immovable or the right of retention, the court of the place where the immovable is located is strictly authorized. (2) Lawsuits regarding easement rights are filed in the court of the place where the immovable on which the easement right is established is located. (3) If these lawsuits concern more than one immovable, they can be filed in the place where one of the immovables is located, also regarding the others.” has been regulated.

In lawsuits regarding a real right on an immovable or lawsuits that may lead to a change in real right ownership, and in lawsuits regarding the possession of the immovable or the right of retention, the court of the place where the immovable is located is strictly authorized. If these lawsuits concern more than one immovable, they can be filed in the place where one of the immovables is located, also regarding the others. In the elimination of co-ownership lawsuit to be filed regarding immovables, the Civil Court of Peace in the place where the immovable is located is considered strictly authorized. An authorization agreement contrary to this rule cannot be made. It should be known that if an authorization agreement is made between the parties, it has no validity. In case there is more than one immovable subject to the lawsuit, the Civil Court of Peace in the place where one of the immovables is located is authorized.

Plaintiff Capacity in Elimination of Co-ownership Lawsuits

The role and obligations of the plaintiff in the elimination of co-ownership lawsuit are quite important. The plaintiff is the shareholder or partner who wants the partition of the property subject to the joint ownership in the lawsuit. The plaintiff can be one or more partners or shareholders. If the shareholder is under 18 years of age, the guardian will be able to file the elimination of co-ownership lawsuit. If the shareholder is restricted, it is also possible for the guardian to file the elimination of co-ownership lawsuit by obtaining permission from the guardianship authority. In some cases, other people can also have the capacity of plaintiff in practice.

In Article 648 of the Turkish Civil Code, titled Participation of the Trustee in Partition; “A creditor who has taken over or seized the share of an heir in the opened inheritance, or who holds a certificate of insolvency against the heir, may request the peace judge to appoint a trustee to participate in the partition in place of this heir.” has been regulated. In addition to the right of the creditors of the heirs to file an elimination of co-ownership lawsuit, creditors have the right to make a request in other cases as well.

In joint ownership, in other words, ownership in common, shares are a whole, and a creditor of one of the partners cannot have the portion falling to their debtor's share seized and sold. In this regard, in Article 121 of the Enforcement and Bankruptcy Law, titled Other Modes of Liquidation. Shares in Joint Ownership; “If it is necessary to sell other types of goods not shown in the above articles, such as a usufruct right or an undivided inheritance or a company or a share of goods possessed in common, the enforcement officer asks the enforcement court how the sale will be done. The enforcement court, after inviting the interested parties whose places of residence are known and listening to those who come, can conduct an open auction or appoint an officer for the sale or take another measure that is necessary.” with the regulation, a creditor of a partner has the right to file an elimination of co-ownership lawsuit with the authorization they will receive from the enforcement court. This authorization must be obtained only and only from the enforcement court judge. This authorization cannot be given by the enforcement office, and an elimination of co-ownership lawsuit cannot be filed directly. In practice, in lawsuits filed without complying with this procedure, instead of a decision of dismissal due to lack of active standing, time is given to the creditor party to obtain authorization from the Enforcement Court Judge.

In Article 94 of the Enforcement and Bankruptcy Law, titled Assets Possessed in Joint Ownership; “If a usufruct right or an undivided inheritance or a company or a share of property possessed in common is seized, the enforcement office notifies the relevant third parties whose places of residence are known of the situation. If in this way the debtor's share in a specific immovable at the end of the liquidation is seized, the enforcement officer makes a notification to the land registry office for the seizure annotation to be entered into the record of the immovable. (Added sentences: 17/7/2003-4949/25 art.) If a share certificate or share certificate provisional receipt has not been issued for shares in joint-stock companies, the debtor's share in the company is seized by the enforcement office by notifying the company. It is mandatory to enter this seizure in the company's share ledger; however, even if the seizure has not been entered in the company's share ledger, it is deemed to have been made on the date of notification to the company. The seizure is notified to the Trade Registry to be registered by the enforcement office. In this case, the transfer of seized shares is void to the extent that it violates the creditor's rights. The sale of seized shares is subject to the procedure for the sale of movable property. In other movables, the enforcement office takes measures to prevent the transfer to others. (Repealed third sentence: 17/7/2003-4949/25 art.) Registration of ownership or other real rights in the name of the debtor, which the debtor has not refused or acquired for another reason and has not yet had registered in the land registry or ship registry, can be requested by the creditor. Upon this request, the enforcement office notifies the land registry or ship registry office and, if necessary, the court that the creditor can follow up on this transaction. If the right to request acquisition by extraordinary statute of limitations on an immovable possessed by the debtor is seized, the enforcement office takes measures to prevent the transfer of possession to someone else and gives the creditor the authority to file a lawsuit within one month for the registration of the immovable in the name of the debtor. With the court's registration decision, the immovable is considered seized in favor of this creditor. The provision of the second paragraph is applied by notifying the competent authority regarding those who do not have the necessary polling procedure performed to receive the pension or orphan's pension they have earned or are receiving. The legal expenses that the creditor will incur for this reason are collected from the debtor by the office without the need for further proceedings and judgment.” has been regulated in detail. As can be seen when the article text is examined, it is understood that an undivided inheritance share can be seized. The creditor of an heir, who is a debtor included in the inheritance partnership, which is a type of joint ownership, has the right to request seizure over their share. When the debtor's inheritance share is seized, in Article 121 of the Enforcement and Bankruptcy Law, titled Other Modes of Liquidation. Shares in Joint Ownership; “If it is necessary to sell other types of goods not shown in the above articles, such as a usufruct right or an undivided inheritance or a company or a share of goods possessed in common, the enforcement officer asks the enforcement court how the sale will be done.” provision is regulated. If it is not asked to the enforcement court by the enforcement office, in case the inheritance share is sold by open auction, the provisions for the annulment of the tender will arise since there is a contradiction to the law articles.

Since there is no situation of sharing or disposing of a share in joint ownership within the scope of estate partnership, the subject of the foreclosure consists of the portion that will fall to that share in the event that the joint ownership terminates. The portion that will fall to the share is determined by converting joint ownership into shared ownership. The creditor party must file a lawsuit regarding the asset for the amount that their receivable will be covered. The lawsuit must be rejected for the portion exceeding the receivable. In order for the creditor to use this path, they must first have previously initiated an enforcement proceeding against the debtor. In the event that the debtor files a request for jurisdiction by not initiating proceedings, the court grants the debtor a period of time to initiate proceedings. It is important to state that Article 121 of the Enforcement and Bankruptcy Law has an area of application for the creditors of the heirs. The creditor party of the decedent has the right to collect their receivable from the estate. If the debtor dies during the enforcement proceeding, the creditor has the right to continue the proceeding where it left off, limited to the assets in the debtor's estate. In this case, we encounter a situation where the heirs of the deceased debtor become necessary co-litigants, replacing their deceased debtor through mandatory joinder of parties. A person who has a usufruct right over the real estate subject to the lawsuit does not have the right to file a lawsuit for the dissolution of the partnership. The most important reason for this is the fact that a usufruct right is not a property right. Furthermore, a person who has purchased a share through a preliminary sales contract made externally or through a notary, which we frequently encounter in practice, does not have the right to file a lawsuit for the dissolution of the partnership either. Similarly, since ownership has not passed to them, the right to file a lawsuit for the dissolution of the partnership has not been formed. A person who acquires a real estate through a contract of lifetime maintenance has the right to file a lawsuit for the dissolution of the partnership when they possess the title of owner in the land registry. The fact that the heirs have not transferred the inheritance left by the decedent to themselves does not prejudice their right to file a lawsuit for the dissolution of the partnership. The right of ownership, as a rule, is not subject to a statute of limitations. However, a person who is disinherited, rejects the inheritance, or waives the inheritance cannot file a lawsuit for the dissolution of the partnership. However, their heirs have the right to file a lawsuit for the dissolution of the partnership. It is important to state that if the person who waived the inheritance did so without consideration, their heirs have the right to file a lawsuit for the dissolution of the partnership because they could benefit from the estate of the root ancestor. In the opposite case, if the heir waived the inheritance for consideration, their heirs will also not have the right to file a lawsuit for the dissolution of the partnership since they will not be able to benefit from the estate of the root ancestor.

A lawsuit for the dissolution of the partnership is a bilateral lawsuit. This means that in the lawsuit, the defendants are also plaintiffs, and the plaintiffs are also defendants. Because of this feature of the lawsuit for the dissolution of the partnership, if the plaintiff waives their lawsuit, the lawsuit continues without being rejected due to the waiver if the defendants wish to continue the lawsuit.

Defendant Status in Lawsuits for Dissolution of Partnership

The role of the defendant or defendants in a lawsuit for the dissolution of the partnership is quite important. A stakeholder or partner who does not consent to the sharing of the shared ownership subject to the lawsuit or cannot reach an agreement on sharing has the status of a defendant in this lawsuit. There can be more than one defendant. The lawsuit for the dissolution of the partnership must be directed against all stakeholders. There is mandatory joinder of parties for the defendant stakeholders. Mandatory joinder of parties stems from substantive law, and all of them will be affected by the result of the lawsuit. In a lawsuit for the dissolution of the partnership, the judge of the Civil Court of Peace must ensure the formation of the parties to the lawsuit and send the petition to all stakeholders. The formation of the parties is ensured by requesting the title deed registration of the real estate subject to the lawsuit from the relevant Land Registry Office. In the lawsuit, the heirs of the deceased stakeholders must also be included in the lawsuit by submitting a certificate of inheritance. In a lawsuit for the dissolution of the partnership, there is no obligation for the defendants to act together. If a representative has been appointed for the estate, the representative must also be shown as a party in the lawsuit for the dissolution of the partnership. The Treasury holds the status of legal heir for individuals who pass away without heirs. In such special cases, individuals or institutions carry the status of defendant. In a lawsuit for the dissolution of the partnership, the lawsuit must be directed against the Treasury. If one of the stakeholders is in a state of absence in a lawsuit for the dissolution of the partnership, the Law on the Appointment of Trustees for Property Officers will be applied. Accordingly, in order to protect the rights and interests of the absent stakeholder, the highest property officer of that place will be appointed as a trustee and will hold the status of defendant. If there is a foundation annotation on the real estate subject to the lawsuit for the dissolution of the partnership, the General Directorate of Foundations, and if there is a usufruct right established on one of the shares on the real estate, the usufructuary will also hold the status of a party in the lawsuit for the dissolution of the partnership. Although the plaintiff and defendants are affected together by the decision given as a result of the lawsuit for the dissolution of the partnership, sometimes third parties in the lawsuit can also be affected. It is possible to participate in the lawsuit for the dissolution of the partnership as an accessory intervener.

The Issue of Prejudicial Question in Lawsuits for Dissolution of Partnership

In lawsuits for the dissolution of the partnership, there is sometimes a dispute regarding the ownership of the movable or immovable property subject to the lawsuit. In such cases, the judge of the Civil Court of Peace grants time to the parties in the lawsuit for the dissolution of the partnership to file a lawsuit regarding the property right in the Civil Court of First Instance, depending on the subject of the dispute. If the lawsuit is not filed within the period granted by the Civil Court of Peace, the lawsuit for the dissolution of the partnership is rejected due to procedural rules. In this case, the main point aimed at and protected in the lawsuit for the dissolution of the partnership is the question of who the property right belongs to and the inability to specify who will file the lawsuit for the dissolution of the partnership or against whom it will be filed. If the lawsuit is filed in the Civil Court of First Instance, the lawsuit for the dissolution of the partnership is treated as a prejudicial question.

In the lawsuit for the determination of the ownership of the improvement (muhdesat), which we encounter most frequently in practice, a claim of ownership is made regarding the trees located on the real estate. In terms of its dictionary meaning, "muhdesat" is used in real estate law to refer to structures such as buildings, facilities, etc., as well as planted plants such as trees and vineyards located on a land. A lawsuit for the determination of the ownership of the improvement is a type of real estate lawsuit filed against all title holders who are stakeholders in the real estate where the improvement is located, excluding those who clearly accept during the trial and expropriation process that the improvement was created by the plaintiff. With a lawsuit for the determination of the ownership of the improvement, the plaintiff determines with a court decision that the improvement was created by them or belongs to them. It is important to state that a lawsuit for the determination of the ownership of the improvement cannot be filed if there is no lawsuit for the dissolution of the partnership or an expropriation process filed regarding the improvement on the real estate subject to the lawsuit. For example, this lawsuit is filed regarding hazelnut trees located in an orchard. A property right arises for all trees and plants that have commercial and economic returns.

There are differences in cases where the improvement belongs to one or more of the stakeholders or a third person. If it belongs to one or more of the stakeholders and an annotation regarding the existence of the improvement has been placed in the title deed, and there is no dispute between the stakeholder or stakeholders, the sale price is determined as a result of the percentage ratio between the total value and the calculated value by calculating the values of the improvement in the lawsuit for the dissolution of the partnership separately.

Mediation Process in Lawsuits for Dissolution of Partnership

In accordance with the Law on Mediation in Civil Disputes No. 6325, it has been regulated that mediation should also be applied to in lawsuits for the dissolution of the partnership.

In Article 1 of the Law on Mediation in Civil Disputes, titled Purpose and Scope; “The purpose of this Law is to regulate the procedures and principles to be applied in the resolution of civil disputes through mediation. (2) This Law applies to the resolution of private law disputes arising from acts or transactions that parties can freely dispose of, including those involving foreign elements. However, disputes involving allegations of domestic violence are not suitable for mediation.” is regulated.

As can be seen, in the purpose and scope section, it is regulated that mediation will be applied in the resolution of private law disputes arising from acts or transactions that the parties can freely dispose of, provided that they carry a foreign element. As is known, the purpose in lawsuits for the dissolution of the partnership is to realize a sharing that the partners can freely dispose of. For this reason, lawsuits for the dissolution of the partnership are a type of lawsuit suitable for the mediation process. However, although it is possible to apply to the mediation process in lawsuits for the dissolution of the partnership, it is optional.

In Article 2 of the Law on Mediation in Civil Disputes, titled Definitions; “Mediator: A natural person who carries out mediation activities and is registered in the mediators' registry kept by the Ministry,

Mediation: A dispute resolution method that is conducted voluntarily with the participation of a neutral and independent third party who has received expert training, who brings the parties together to discuss and negotiate by applying systematic techniques, who ensures that a communication process is established between them to enable them to understand each other and thus generate their own solutions, and who can also offer solutions in case it is revealed that the parties cannot generate a solution,” is defined.

It is possible to apply for mediation in terms of a lawsuit for the dissolution of the partnership. The person or persons appointed as mediators must be independent of the parties to the dispute. Mediators should not exhibit biased or fixed-minded attitudes and behaviors. At the same time, in addition to being objective and impartial, mediators are expected to have reached the ability to perceive events in a multifaceted way. Applying for the mediation process will also be very beneficial for the parties. Since the trial fees and expenses are compared with the low price of the property subject to the lawsuit in a lawsuit for the dissolution of the partnership, mediation activity is less costly at this point. At the same time, the mediation process takes much less time than the court process. In the presence of joint ownership in lawsuits for the dissolution of the partnership, all partners must participate in the mediation process and make a decision unanimously. However, if shared ownership is in question, the situation is different. At this point, a voluntary mediation partnership is formed between the stakeholders. In this case, each stakeholder has the right to continue the mediation activity by themselves or with other stakeholders. The most important point to pay attention to is that each stakeholder should apply for the mediation process regarding their own share. As a result, for the dissolution of the partnership, it is required that all stakeholders are aware of the mediation process and consent in line with their own shares. The judge of the Civil Court of Peace prepares a form containing information and documents regarding mediation and sends it to the parties of the lawsuit because the lawsuit for the dissolution of the partnership is suitable for mediation. The points that must be included in the mediation application form in particular are: the benefits of mediation activity, how they can reach a mediator, and what information regarding mediation processes is. At the stage of the lawsuit for the dissolution of the partnership, the parties have the right to apply to a mediator by agreement. They must inform the Civil Court of Peace that they have decided to apply for mediation by filling out the mediation application form. It contains information that the lawsuit for the dissolution of the partnership will be postponed by the Civil Court of Peace for a maximum of three months and that if there is an agreement, an agreement report will be drawn up and this report will have the capacity to be executed. If an agreement has been reached between the parties as a result of the mediation application, this agreement is binding. The agreement text is approved by the Civil Court of Peace and accepted as a document in the nature of a court verdict.

Decisions That Can Be Given in Lawsuits for Dissolution of Partnership

In a lawsuit for the dissolution of the partnership, the decisions that can be given by the Civil Court of Peace can vary. Depending on the information, documents, and requests that the parties add to the lawsuit at every stage of the trial, decisions in the trial phase can change. Discovery is carried out by expert witnesses in the Civil Court of Peace during the trial phase to determine the financial value of the real estate subject to the lawsuit for the dissolution of the partnership. As a result of this discovery, it is also investigated whether the real estate subject to the lawsuit is in a divisible structure. What is essential in lawsuits for the dissolution of the partnership is the financial value for the real estate subject to the lawsuit, and it is learned by preparing a valuation report when the sale stage is reached. There are similar applications for movables in the lawsuit for the dissolution of the partnership. However, there are no procedures for valuation at the sale stage of movables. In the application phase, the value of the movable is determined by expert witnesses at the trial and sale stage. If the property with multiple ownership on it has a divisible nature as a result of the discovery made, the Civil Court of Peace judge decides for the "acceptance of the lawsuit and division in kind" at this point. If it is not possible to divide the real estate in kind, it decides for the "acceptance of the lawsuit and division by sale".

Ordinary and Extraordinary Legal Remedies in Lawsuits for Dissolution of Partnership

Ordinary legal remedies in lawsuits for the dissolution of the partnership are carried out in two ways: the appellate legal remedy and the supreme court appeal legal remedy. First, I would like to tell you about the appellate legal remedy.

In Article 345 of the Code of Civil Procedure No. 6100, titled Application Period; “The period for application to the appellate remedy is two weeks. This period begins to run upon the formal notification of the verdict to each of the parties. Special law provisions regarding the period for application to the appellate remedy are reserved.” is regulated.

According to this article, the appellate remedy must be applied for upon request within two weeks regarding the lawsuit for the dissolution of the partnership.

Another legal remedy in lawsuits for the dissolution of the partnership is the supreme court appeal legal remedy. In Article 362 of the Code of Civil Procedure No. 6100, titled Decisions That Cannot Be Appealed to the Supreme Court; “The following decisions of the regional courts of justice cannot be appealed to the Supreme Court:

a) Decisions regarding lawsuits where the amount or value does not exceed forty thousand Turkish Liras (including this amount). (1)

b) Decisions related to lawsuits where the Civil Court of Peace is specified as the duty in special laws (except for the cases arising from the Property Ownership Law No. 634 dated 23/6/1965 and related to the substance of the real estate) and lawsuits shown in Article 4, excluding monetary receivables arising from rental relationships that can be appealed in terms of amount or value, and other lawsuits arising from rental relationships where the three-month rental amount is above the appeal threshold. (4)(6)

c) (Amended: 22/7/2020-7251/39 art.) Decisions given regarding the duty and jurisdiction of first-instance courts within the judicial district and decisions regarding the determination of the judicial place. ç) Decisions given in non-contentious judiciary matters.

d) Decisions regarding lawsuits for the correction of civil registry records, excluding cases that produce results related to lineage.

e) Decisions regarding the transfer of the lawsuit to another court within that judicial district in case the judges of the first-instance courts within the judicial district have legal or actual obstacles to hearing the case.

f) Decisions given regarding temporary legal protections.

g) (Added: 22/7/2020-7251/39 art.) Decisions given within the scope of subparagraph (a) of the first paragraph of Article 353. (2) In the decisions in subparagraph (a) of the first paragraph, if a portion of the receivable has been sued for, the forty thousand Turkish Lira finality threshold is determined according to the total of the receivable. If the entire receivable has been sued for, the party whose part of the main claim not accepted in the decision does not exceed forty thousand Turkish Liras has no right to appeal to the Supreme Court. However, if the other party applies to the supreme court appeal remedy, the other party can also appeal the decision with a response petition they will prepare. (3)” is regulated.

As can be clearly seen in the law article, decisions related to lawsuits that fall under the duty of the Civil Court of Peace cannot be the subject of an appeal to the Supreme Court. It is clearly regulated in the Code of Civil Procedure that the court in charge is the Civil Courts of Peace. For this reason, there is no other place to apply other than the Regional Court of Justice in lawsuits for the dissolution of the partnership. The supreme court appeal path has been closed in lawsuits for the dissolution of the partnership.

Extraordinary legal remedies in lawsuits for the dissolution of the partnership are carried out in two ways: appeal for the benefit of the law and resumption (renewal) of the trial.

In Article 363 of the Code of Civil Procedure No. 6100, titled Appeal for the Benefit of the Law; “An appeal for the benefit of the law is filed by the Ministry of Justice or the Chief Public Prosecutor's Office of the Supreme Court of Appeals against the decisions that first-instance courts have given as final and the decisions that have become final without passing through appellate review, and the decisions that the civil chambers of the regional court of justice have given as final in the capacity of a first-instance court and those that have become final without passing through supreme court appeal review, on the grounds that they are contrary to the applicable law. (2) If the appeal request is found justified by the Supreme Court, the decision is overturned for the benefit of the law. This overturning does not eliminate the legal consequences of the decision. (3) A copy of the overturning decision is sent to the Ministry of Justice and is published in the Official Gazette by the Ministry.” is regulated.

Appeal for the benefit of the law is an extraordinary legal remedy and is a special field. An appeal for the benefit of the law is made by the Ministry of Justice or the Chief Public Prosecutor's Office of the Supreme Court of Appeals because the decisions that the first-instance court and the regional court of justice have given as final, and which have become final after passing through appellate and supreme court appeal review, are contrary to the applicable legal rules. The main purpose aimed at in applying for this legal remedy is the overturning of the final decision given contrary to the applicable legal rules and reason/logic, its publication in the Official Gazette, and thus preventing similar potential decisions that may be given in the future.

Another extraordinary legal remedy in lawsuits for the dissolution of partnership is the request for retrial (reopening of the case). Article 374 of the Code of Civil Procedure No. 6100, titled "Application Period," stipulates: “A retrial may be requested against judgments that have been rendered as final or have become final.” This finalization may occur with or without recourse to ordinary legal remedies. A retrial is an exceptional remedy. For this reason, it is sought to set aside decisions after they have become final as a result of certain errors or omissions. It is not possible to apply for retrial against decisions that are not final in a substantive sense. Furthermore, a retrial cannot be requested against decisions related to non-contentious jurisdiction, nor against decisions rendered by enforcement courts that do not constitute a final judgment. Exceptionally, it is possible to apply for a retrial against decisions rendered by enforcement courts regarding the rejection of a request for the cancellation of a tender.

Article 378 of the Code of Civil Procedure No. 6100, titled "Court to Examine and Security," stipulates: “(1) The petition containing the request for retrial is examined by the court that rendered the decision. (2) Depending on the nature of the grounds relied upon, the court may request the party requesting the retrial to provide an appropriate amount of security to cover the damages of the opposing party.”

In a potential tender cancellation lawsuit that may arise depending on the situation and conditions following a dissolution of partnership lawsuit, if the judge of the civil court of peace decides to dismiss the case, a request for retrial may be made. The request for retrial is examined by the court that rendered the decision.

Court Fees, Litigation Costs, and Attorney's Fees in Dissolution of Partnership Lawsuits

Article 120 of the Code of Civil Procedure No. 6100, titled "Payment of Fees and Advance for Expenses," stipulates: “The plaintiff is obliged to deposit the litigation fees and the amount determined in the expense advance tariff issued annually by the Ministry of Justice into the court cashier upon filing the lawsuit. (2) If it is understood during the lawsuit that the advance is insufficient, the court grants the plaintiff a final period of two weeks to complete this deficiency. (3) (Added: 22/7/2020-7251/9 art.) The provisions of Article 324 regarding the evidence advance determined by the court for the evidence that each of the parties requests to be substituted are reserved.”

The plaintiff must deposit the litigation fees and the amount determined in the expense advance tariff, set annually by the Ministry of Justice, into the court cashier when filing the lawsuit. If it is understood during the litigation stage that the advance is insufficient, a final period of two weeks is granted to the plaintiff to remedy this deficiency. It is mandatory to deposit the fees when filing the lawsuit. This matter is a condition of the lawsuit. If the deficiency is not remedied, the lawsuit filed by the plaintiff is dismissed on procedural grounds. In a dissolution of partnership lawsuit, the application fee and the advance fee are deposited first. The amounts of the fees are specified in the tariff published in the Official Gazette each year.

The regulation regarding litigation costs is found in the Code of Civil Procedure. Article 323 of the Code of Civil Procedure No. 6100, titled "Scope of Litigation Costs," stipulates: “Litigation costs are as follows:

a) Application, decision, and judgment fees.(1)

b) Notification and postal expenses incurred due to the lawsuit.

c) File and other document expenses.

ç) Expenses related to temporary legal protection measures and protests, notices, warnings, and power of attorney arrangements.

d) Discovery expenses.

e) Fees and expenses paid to witnesses and experts.

f) Fees, taxes, charges, and other expenses paid for documents obtained from official offices.

g) The amount to be appreciated by the judge for daily, travel, and accommodation expenses for the days the parties are present in lawsuits not followed by an attorney; the daily, travel, and accommodation expenses to be appreciated for a party who is called to be personally heard, interrogated, or sworn in by the court, even if they have an attorney.

ğ) The attorney's fee to be appreciated according to the law in lawsuits followed by an attorney.

h) Other expenses incurred during the litigation.”

If the plaintiff waives the lawsuit and the defendants do not wish to continue the lawsuit, the plaintiff is ordered to bear the litigation costs.

Article 326 of the Code of Civil Procedure No. 6100, titled "Responsibility for Litigation Costs," stipulates: “Except for cases written in the law, it is decided that litigation costs are to be taken from the party against whom the judgment is rendered. (2) If each of the two parties in the lawsuit is partially successful, the court distributes the litigation costs according to the parties' degree of success. (3) If those against whom the judgment is rendered are more than one, the court may distribute the litigation costs among them or decide that they are jointly and severally liable.”

In a dissolution of partnership lawsuit, litigation costs are collected from the sale price. By the nature of the lawsuit, litigation costs are collected from the sale price, individually from each shareholder in proportion to their shares. The money obtained following the sale is distributed to each shareholder in proportion to their shares.

There are differences regarding attorney's fees in dissolution of partnership lawsuits compared to other lawsuits. At this point, the generally accepted rule is the "Attorney's Fee Tariff." According to the first part of the second section of the Minimum Attorney's Fee Tariff published by the Union of Turkish Bar Associations in the Official Gazette on November 20, 2021, the minimum attorney's fee for dissolution of partnership and partition lawsuits was accepted as 4,255.00 TL. As seen, the attorney's fee is calculated as a fixed amount, and no calculation is made based on the sale price. In dissolution of partnership lawsuits, if the plaintiff and defendant parties are represented by an attorney and the lawsuit has resulted in acceptance, an attorney's fee is earned in favor of both parties. This situation distinguishes the dissolution of partnership lawsuit from the characteristics of other lawsuits. In a dissolution of partnership lawsuit, an attorney's fee is appreciated for the attorney as if both parties had won. If the defendant party does not have a request for partition in the dissolution of partnership lawsuit but is represented by an attorney, an attorney's fee is appreciated for their attorney by the Civil Court of Peace. The most important reason for this is that the defendant will receive a share from the sale price in proportion to their share as a result of the sale and partition, and even if it did not result as they requested during the trial, they received the assistance of an attorney. In the event of the acceptance of the dissolution of partnership lawsuit, if there is more than one defendant and each defendant has separate attorneys, a separate attorney's fee is awarded in favor of each defendant's attorney. It is important to note that if multiple defendants have a single attorney, an attorney's fee is not awarded per client.

If a decision is made to dismiss the case in a dissolution of partnership lawsuit, the Minimum Attorney's Fee Tariff is applied regarding the attorney's fee.

Article 3 of the Minimum Attorney's Fee Tariff, titled "Ownership of Attorney's Fee, Its Limits, and Attorney's Fee of Defendants in Case of Dismissal of the Case for Common or Different Reasons," stipulates: “The attorney's fee to be charged to the opposing party to belong to the attorney by judicial authorities cannot be less than the amount written in this Tariff and more than three times its amount. In determining this fee, the attorney's effort, diligence, the importance and nature of the work, and the duration of the lawsuit are taken into account. (2) In the dismissal of a lawsuit filed against more than one defendant, including joint and several liability, a single attorney's fee is awarded in favor of the attorney for defendants whose reason for dismissal is common, and a separate attorney's fee is awarded for each reason for dismissal in favor of the attorney for defendants whose reason for dismissal is separate.”

Unlike other types of lawsuits, in dissolution of partnership lawsuits, if the lawsuit is accepted, an opposing attorney's fee is awarded in favor of the defendant party. This attorney's fee is collected from the defendants from the sale price in proportion to their shares. In other lawsuits, the entire attorney's fee is paid by the opposing party depending on the acceptance or dismissal of the lawsuit. However, this situation is different in a dissolution of partnership lawsuit.

Stages of Sale in Dissolution of Partnership Lawsuits

In the event that the judge of the Civil Court of Peace decides to dissolve the partnership through sale, the sale transactions are carried out within the framework of the relevant provisions in the Enforcement and Bankruptcy Law. Articles 106-137 of the Enforcement and Bankruptcy Law provide a detailed area of regulation regarding sales.

Primarily, the decision rendered by the judge of the Civil Court of Peace regarding the dissolution of the partnership is executed by the Sale Office or the Enforcement Office. Following the finalization of the decision rendered by the judge of the Civil Court of Peace in the dissolution of partnership lawsuit, upon the request of the plaintiff party, the file is referred to the relevant Sale Office together with all attachments and documents. Following the receipt of the file by the sales office, sale transactions begin. The sales office records the sale file by assigning a sale number. The sales office prepares the movable or immovable property decided to be sold for auction, arranges valuations, goes to discovery, and conducts the sale by ensuring the auction is held. Finally, following the realization of the sale, it completes the tender and carries out the distribution of the money obtained as a result of the sale to the shareholders in proportion to their shares.

It is necessary to examine the sale transactions in two parts: the sale of movables and the sale of immovables.

First, regarding the sale of movables; following the referral of the file to the sales office, Article 112 of the Enforcement and Bankruptcy Law, titled "Sale of Movables," stipulates: “Movable properties are sold within at most two months from the sale request. (1) Unharvested crops cannot be sold without the debtor's consent.”

Article 114 of the Enforcement and Bankruptcy Law, titled "Preparation Measures for Auction," stipulates: “The sale is conducted by auction. The interval between the day and hour of the first and second auction is announced at least fifteen days before the start date of the auction. The announcement to be made on the electronic sales portal is kept accessible until the end of the auction. The start date of the second auction is determined so as not to exceed one month from the end date of the first auction. The form of the announcement and whether it will be made via newspaper is determined by the enforcement office by taking into account what is most appropriate for the interests of the stakeholders. If it is decided to make the announcement via a newspaper published nationwide, this announcement is made through one of the newspapers with a circulation of over fifty thousand (50,000) at the date of the sale request and distributed nationwide. (1) Announcements to be made via newspaper are not supplemented with the sale specifications, and it is sufficient to write the electronic sales portal where the type, nature, important characteristics, estimated value, and location of the item to be sold, the day and hour interval of the first and second auction, and information regarding the auction are located. Except for mandatory announcements to be made by the enforcement office, the parties can announce the text on the electronic sales portal through the means they wish, at their own expense. However, this private-type announcement does not affect the official proceedings. In case of discrepancies between the announced texts, the text announced on the electronic sales portal is taken as the basis. Provided that errors in the text announced in the newspaper or on the electronic sales portal are corrected via announcement only on the electronic sales portal without changing the tender date. This correction announcement is not notified to the parties separately. The announcement to be made on the electronic sales portal includes the following matters:

1. The type, nature, important characteristics, estimated value, location, and images if any of the item to be sold, and other information contained in the auction specifications.

2. To participate in the auction, it is mandatory to deposit a security in the amount covering ten percent of the value of the distrained item into the bank account of the enforcement office conducting the sale, and in case the security is cash, it must be deposited by 23:30 on the day before the end of the auction period at the latest.

3. In case the security to be shown is a letter of guarantee, it is mandatory for those who will participate in the auction to submit an absolute and indefinite bank letter of guarantee in the amount covering ten percent of the value of the distrained item subject to sale to the enforcement office conducting the sale by the end of business hours on the business day before the end of the auction period at the latest.

4. It is mandatory for those who will participate in the auction through a representative to apply to the enforcement office conducting the sale by the end of business hours on the business day before the end of the auction period at the latest.

5. In cases where partial sale is possible, it is mandatory for joint buyers who want to purchase the property subject to auction with specific shares to apply to the enforcement office conducting the sale by the end of business hours on the business day before the end of the auction period at the latest.

6. If the creditor requesting the sale and wishing to participate in the auction, and the shareholder wishing to participate in the auction in the dissolution of partnership by sale, apply to the enforcement office conducting the sale by the end of business hours on the business day before the end of the auction period at the latest, no security will be taken from them for the amount covered by the claim or partnership share.

7. If the conditions are met, the property will be tendered to the highest bidder.

8. The bids to be given on the electronic sales portal must exceed the amount which is higher of the sum of fifty percent of the estimated value of the distrained property and the claims secured by that property and having priority over the claim of the party requesting the sale, and additionally, the costs of conversion to cash and distribution.

9. In case the tenderer makes the highest bid but does not deposit the tender price within the time limit, the security taken will not be returned and will be paid to the entitled parties to be offset against their claims, primarily to be deducted from the sale expenses.

10. In cases where the tender cannot be held due to the minimum tender price not being offered or the tender is cancelled because the highest bidder does not deposit the tender price, the second auction will be held again within the framework of the conditions in the first auction.

11. The tenderer must pay the entire sale price to the enforcement office account within at most seven days from the date the record regarding the realization of the tender is announced on the electronic sales portal.

12. Those who participate in the sale are considered to have seen the specifications with all their attachments and accepted their contents.

13. Upon finalization of the tender, registration and delivery procedures of the property will be carried out. Upon finalization of the tender, the delivery of the movable to the tenderer or the registration of the property registered in the registry in the name of the tenderer is carried out after the stamp duty and value added tax are deposited.”

As stated in detail in the relevant law article, as a rule, the sale is conducted by auction. However, in some cases, it is also accepted that the sale can be made by negotiation.

Article 119 of the Enforcement and Bankruptcy Law, titled "Sale by Negotiation," stipulates: “The sale can be made by negotiation in the following cases:

1 – If all stakeholders want it,

2 – If the determined price is offered in that day's market for valuable papers or other goods with a price on the stock market or market,

3 – If this value is given to gold and silver items that have not found their bullion value in the auction,

4 – If the situations indicated in the second paragraph of Article 113 exist,

5 – (Amended: 17/7/2003-4949/31 art.) If the estimated value of the distrained property does not exceed one billion liras.”

Although the rule is to conduct the sale by auction, there may be situations where a decision for private sale is taken. For this, the approval of all shareholders must be obtained. If even one of the shareholders does not consent to a private sale, the sale is conducted by auction.

In a dissolution of partnership lawsuit, preparation procedures for auction are regulated in detail in the Enforcement and Bankruptcy Law.

Article 114 of the Enforcement and Bankruptcy Law, titled "Preparation for Auction," stipulates: “The sale is conducted by auction. The interval between the day and hour of the first and second auction is announced at least fifteen days before the start date of the auction. The announcement to be made on the electronic sales portal is kept accessible until the end of the auction. The start date of the second auction is determined so as not to exceed one month from the end date of the first auction. The form of the announcement and whether it will be made via newspaper is determined by the enforcement office by taking into account what is most appropriate for the interests of the stakeholders. If it is decided to make the announcement via a newspaper published nationwide, this announcement is made through one of the newspapers with a circulation of over fifty thousand (50,000) at the date of the sale request and distributed nationwide. (1) Announcements to be made via newspaper are not supplemented with the sale specifications, and it is sufficient to write the electronic sales portal where the type, nature, important characteristics, estimated value, and location of the item to be sold, the day and hour interval of the first and second auction, and information regarding the auction are located. Except for mandatory announcements to be made by the enforcement office, the parties can announce the text on the electronic sales portal through the means they wish, at their own expense. However, this private-type announcement does not affect the official proceedings. In case of discrepancies between the announced texts, the text announced on the electronic sales portal is taken as the basis. Provided that errors in the text announced in the newspaper or on the electronic sales portal are corrected via announcement only on the electronic sales portal without changing the tender date. This correction announcement is not notified to the parties separately. The announcement to be made on the electronic sales portal includes the following matters:

1. The type, nature, important characteristics, estimated value, location, and images if any of the item to be sold, and other information contained in the auction specifications.

2. To participate in the auction, it is mandatory to deposit a security in the amount covering ten percent of the value of the distrained item into the bank account of the enforcement office conducting the sale, and in case the security is cash, it must be deposited by 23:30 on the day before the end of the auction period at the latest.

3. In case the security to be shown is a letter of guarantee, it is mandatory for those who will participate in the auction to submit an absolute and indefinite bank letter of guarantee in the amount covering ten percent of the value of the distrained item subject to sale to the enforcement office conducting the sale by the end of business hours on the business day before the end of the auction period at the latest.

4. It is mandatory for those who will participate in the auction through a representative to apply to the enforcement office conducting the sale by the end of business hours on the business day before the end of the auction period at the latest.

5. In cases where partial sale is possible, it is mandatory for joint buyers who want to purchase the property subject to auction with specific shares to apply to the enforcement office conducting the sale by the end of business hours on the business day before the end of the auction period at the latest.

6. It is stipulated that for the creditor requesting the sale and wishing to participate in the auction, as well as for the shareholder wishing to participate in the auction in cases of liquidation of partnership through sale, no security deposit shall be required from them up to the amount covered by the claim or the partnership share, provided that they apply to the enforcement office conducting the sale no later than the end of business hours on the working day preceding the end of the auction period.

7. That if the conditions are met, the property shall be auctioned to the highest bidder.

8. That bids to be submitted on the electronic sales portal must exceed whichever is greater: fifty percent of the appraised value of the seized property or the total of the debts secured by said property that have priority over the claim of the party requesting the sale; and in addition to this amount, they must also cover the costs of liquidation and distribution.

9. That if the auction buyer makes the highest bid but fails to deposit the auction price within the prescribed time, the security deposit collected shall not be refunded but shall be paid to the entitled parties in set-off against their claims, primarily to be deducted from the sale costs.

10. That in cases where the auction cannot be held because the minimum auction price is not bid, or where the auction is cancelled because the highest bidder fails to deposit the auction price, a second auction shall be held again under the framework of the conditions of the first auction.

11. That the auction buyer must pay the entire sale price into the enforcement office's account within seven days at the latest from the date the minutes regarding the realization of the auction are published on the electronic sales portal.

12. That those participating in the sale shall be deemed to have seen the specifications along with all their annexes and to have accepted their contents.

13. That upon the finalization of the auction, the registration and delivery procedures for the property shall be carried out. Upon finalization of the auction, the delivery of the movable property to the auction buyer or the registration of the property registered in the official registry in the name of the auction buyer is carried out after the payment of stamp duty and value-added tax," it is regulated.

In the sale of movables, preparatory procedures consist of preparing the auction announcement and the auction specifications.

The auction announcement is announced in advance regarding the place, day, and time where the first and second auctions will be held in accordance with the Enforcement and Bankruptcy Law. By the sales office; the form of the announcement, the manner in which the auction will be conducted, its location, day, and time are regulated in detail to the extent that the interests of the relevant parties are taken into account. In the event that the sales office decides to publish the auction announcement in a newspaper published nationwide, said announcement must be in one of the newspapers with a circulation of over fifty thousand on the date of the sale request and distributed nationwide. No obligation has been imposed to serve notice to shareholders in the sale announcement for the sale of movable property. However, if a decision to issue a notification has been made by the sales office, then the sales auction must be properly notified to all shareholders. If this procedure is not fulfilled, the possibility of filing a lawsuit for the annulment of the auction arises.

In addition to the auction announcement preparations, another issue that must be prepared by the sales office is the auction specifications. The auction specifications state the characteristics of the movable property subject to the sale for which a decision has been made. The sale specifications are not shown in detail in the auction announcements given to the newspaper. The type, nature, important characteristics, appraised value, location of the movable property to be sold, the day and time of the second auction, and where and how information regarding the sales specifications can be learned, and that a copy of the specifications will be sent upon request by covering the costs, are specified.

The auction by the sales office starts ten days before the first auction date through the submission of bids by the parties and 3rd parties in the electronic environment and continues until the end of the day preceding the day the auction is completed. As for the second auction; the electronic bidding period will be determined for at least ten days, starting from the fifth day after the first auction, and ends at the end of the day preceding the day the second auction is completed. The bids submitted in the electronic environment must not be less than fifty percent of the value of the seized property in its appraisal. Furthermore, it is important to state that before submitting a bid, a security deposit of twenty percent of the estimated value of the seized property must be deposited.

In Article 115 of the Enforcement and Bankruptcy Law, titled "Conducting the Auction," it is stipulated as follows: "The first and second auctions are initiated by the enforcement officer at the day and time determined in the announcement, based on fifty percent of the appraised value of the seized property. If the conditions are met, the property is auctioned to the highest bidder. However, the auction price must exceed whichever is greater: fifty percent of the appraised value of the seized property or the total of the debts secured by said property that have priority over the claim of the party requesting the sale; and in addition to this amount, it must also cover the costs of liquidation and distribution. On the day and time the auction ends, if the conditions are met, the property is auctioned to the highest bidder and the ownership of the property passes to the auction buyer. In the event that the auction buyer makes the highest bid but fails to deposit the auction price within the prescribed time, the security deposit collected is not refunded but is paid to the entitled parties in set-off against their claims, primarily to be deducted from the sale costs. On the first business day after the auction ends on the electronic sales portal, the enforcement officer prepares an auction result report regarding the outcome of the auction and announces the information in this report on the sales portal on the same day. The report specifies the day and time the auction was completed, that the property was auctioned to the highest bidder if the conditions were met, that the auction price must be deposited into the enforcement office's account within seven days from the publication of the report, and the grounds for why the auction could not be held if the conditions were not met. The sale request cannot be withdrawn after bidding has begun. If the debt is fully paid before the end of the bidding period, the sale is stopped. The enforcement officer determines by a report that the auction could not be held or was cancelled in cases where the minimum auction price was not bid, the highest bidder did not deposit the auction price, or the debt was paid before the end of the bidding period. In cases where the minimum auction price is not bid or the highest bidder does not deposit the auction price, the second auction starts on the previously announced date within the framework of the conditions in the first auction. If no buyer emerges at the auction or the conditions written in this article are not met, the creditor may request that a sale date be given within the remaining sale request period from the previous sale request. The sale request period stops with the sale request, and this stopped period begins to run from where it left off from the date of the report stating that the auction could not be held or was cancelled. If the enforcement officer determines from the sales portal records that a bid could not be submitted within the last ten minutes of the auction due to technical reasons arising from the electronic sales portal on the first business day after the auction ends, they decide to extend the auction period by one day; they indicate the start and end dates and times of the auction in the decision and immediately announce all these issues on the sales portal. In this case, the start date of the auction cannot exceed three days from the date the decision to extend the auction period was made. During this period, the previous highest bidder remains bound by their bid, and new applicants may also participate in the auction by depositing the security."

In accordance with the Enforcement and Bankruptcy Law, the first and second auctions are initiated by the sales office upon the highest bid submitted electronically at the place, day, and time specified in the announcement. The property whose sale is decided by the Civil Court of Peace is auctioned to the auction buyer who submits the highest bid electronically by being called out three times at the sales office. If there is no buyer in the first auction, preparation for the second auction is made by the sales office. If there are no buyers in the second auction either, the sale request lapses in accordance with Article 115 of the Enforcement and Bankruptcy Law.

In Article 117 of the Enforcement and Bankruptcy Law, titled "Gold and Silver Goods," it is stipulated as follows: "Gold and silver goods cannot be sold at a price lower than their value in bullion form."

Certain results arise as a result of the first and second auctions conducted by the sales office. In Article 118 of the Enforcement and Bankruptcy Law, titled "Payment of the Auction Price and Delivery of the Property," it is stipulated as follows: "The auction buyer is obliged to pay the sale price in cash within seven days from the publication of the auction result report, even if the annulment of the auction has been requested. The sold property is not delivered and is not registered in the name of the buyer in the official registry until the auction is finalized."

If there is a situation where payment is not made after the auction is held, the sales officer has the right to directly annul the auction. The Enforcement and Bankruptcy Law article also clearly stipulates that if the auction price is not paid by placing a bid in the auction, the non-paying buyer and guarantors are responsible for the difference between the offered price and the final price. First, if this difference is sufficient, it is covered by the deposited security amount.

In the sale of real estate; after the file is referred to the sales office, in Article 123 of the Enforcement and Bankruptcy Law, titled "Sale Period," it is stipulated as follows: "Real estate is sold by the enforcement office through public auction within three months at the latest from the sale request."

The sale of real estate is carried out by way of public auction, and sale by private treaty does not appear to be possible. Although as a rule, the sales office conducts sales by public auction, a decision can be made to conduct a closed sale. As I stated in detail above, for a closed sale decision to be made, the consent of all shareholders must be obtained.

In the preparation procedure for the auction in the sale of real estate, unlike the sale of movables, there is the existence of the appraisal and the list of liabilities regulated in the Enforcement and Bankruptcy Law.

In Article 126 of the Enforcement and Bankruptcy Law, titled "Auction Preparation Measures," it is stipulated as follows: "The provision of Article 114 also applies to the public auction preparation measures for real estate. In the sale announcement to be made on the electronic sales portal; it is stated that, along with the issues specified in Article 114, mortgage creditors, if any, and other interested parties must notify the enforcement office of their rights on the real estate, especially their claims regarding interest and costs, with supporting documents within fifteen days; otherwise, their rights will be excluded from the distribution of the sale price unless they are proven by the land registry, and these issues will also apply to the holders of easement rights."

As regulated in detail in the relevant article of the Enforcement and Bankruptcy Law; the place, day, and time where the first and second auctions will be held are announced at least one month in advance. In the announcement prepared by the sales office, the type of the item to be sold, its nature, characteristics that can be considered important, appraisal, location, the place, day, and time where the first and second auctions will be held, and that those who will participate in the auction must submit a deposit (earnest money) at the rate of twenty percent of the estimated value of the real estate put up for sale or a letter of guarantee obtained from a national bank are required.

In the auction specifications prepared by the sales office regarding the sale of real estate, the rights and obligations regarding the real estate are regulated.

In Article 124 of the Enforcement and Bankruptcy Law, titled "Specifications," it is stipulated as follows: "The enforcement office determines the auction conditions in the most convenient manner according to the customs of the place where the real estate is located."

All issues regarding the real estate are shown by the sales office by preparing specifications. At the stage of preparing these specifications, the sales office has the right to request documents by writing a letter to the relevant land registry offices in order to obtain the information of the real estate accurately. The auction specifications state in detail which expenses will belong to the buyer, and that in the case of sale together with easement rights on the real estate, real estate encumbrances, mortgages and mortgaged debt instruments, and annuity bonds, the personal debts of the debtor secured by this real estate will also pass to the buyer. The specifications prepared by the sales office are exhibited by being hung in a place where everyone can see them at least ten days before the auction.

Another list that the sales office must prepare with importance in the sale of real estate is the list of liabilities. In Article 128 of the Enforcement and Bankruptcy Law, titled "List of Liabilities," it is stipulated as follows: "Before starting the sale, the enforcement officer makes a list of all liabilities registered in the land registry or based on an official deed on the real estate, notifies this list to the attachers and the debtor, and gives them a three-day deadline to declare their objections. The provisions of articles 96 and 97 are also valid here. (Amended: 19/11/1988-3494/19 md.) The enforcement office has the value of the real estate appraised; in the appraisal of the real estate, the effect of the liabilities on the real estate on the value is also taken into account. (Added sentence: 17/7/2003-4949/33 md.) In the event that liabilities affecting the previously appraised value of the real estate emerge, the enforcement office has the value of the real estate re-appraised to serve as the basis for the sale. The report regarding the appraisal is served to the debtor, the creditors who have placed an attachment, and other mortgage creditors based on their current addresses in the land registry, except in cases where notification has been made in the enforcement file, and excluding the last repealed sentence. (Added paragraph: 21/2/2007-5582/2 md.) The enforcement office, in the pursuit of receivables arising from housing finance defined in the first paragraph of Article 38/A of the Capital Markets Law No. 2499 and receivables secured by pledge of the Housing Development Administration, has the appraisal for the real estate whose sale is requested made by persons or institutions authorized in accordance with clause (r) of the first paragraph of Article 22 of the same Law. (Added paragraph: 17/7/2003-4949/33 md.) If there are incentivized goods in the nature of an accessory in the real estate put up for sale, the enforcement office also has the value of these goods appraised separately. Before the sale, the relevant institutions are asked about the obligations such as taxes, duties, and fees on these goods. Upon the request of the creditor requesting the sale, these goods can be kept out of the sale, or they can be auctioned together with the real estate according to the provisions of Article 129 by taking into account public receivables such as taxes, duties, and fees arising from the essence of the goods. (Added paragraph: 28/2/2018-7101/1 md.) Goods and rights that present commercial and economic integrity or that are understood to yield higher income if sold as a whole are liquidated as a whole."

As regulated in detail within the scope of the Enforcement and Bankruptcy Law, the sales officer makes a list of the liabilities appearing in the land registry on the real estate before starting the sale.

Appraisal procedures for the real estate are carried out by the sales office. The discovery procedures performed by the Civil Court of Peace judge during the liquidation of partnership case phase are related to whether it is possible to divide the real estate in kind, in addition to determining the value of the real estate. For this reason, a discovery is made by the sales officer to carry out appraisal procedures. During the discovery of the real estate, it is possible for a committee consisting of an agricultural, mechanical, or construction engineer, alongside a technical expert in their field, to be present. After the appraisal procedures are carried out by the experts, they are served to the parties.

From the date the appraisal report is served to the parties, the shareholders have the right to file an objection to the appraisal with the Civil Court of Peace within 7 days. In practice, this lawsuit is called an "Objection to Appraisal Lawsuit." In the Objection to Appraisal Lawsuit, a new discovery examination is carried out based on the simple trial procedure. The decision to be given by the Civil Court of Peace following the new discovery and expert reports is final. In case the appraisal is finalized after no objection is made, a new request for appraisal is not accepted for two years. This situation is important for the sake of procedural economy. However, the way to request a new appraisal without looking at the year limitation has been opened by an article of the Enforcement and Bankruptcy Law due to the new order created by natural disasters or extraordinary changes in the zoning status.

The same procedures are valid in the auctioning of real estate as in the auctioning of movables. As regulated in detail in Article 126 of the Enforcement and Bankruptcy Law; public auction is started by submitting bids in an electronic environment. Electronic bidding starts twenty days before the first auction date and ends on the day before the day the auction is completed. In the second auction; electronic bidding starts on the fifth day after the first auction and continues until the end of the day before the day the second auction is completed, which will be determined for at least twenty days later. It is possible for the bids to be submitted in an electronic environment not to be less than fifty percent of the estimated value of the real estate to be sold and for a security deposit at the rate of twenty percent of the estimated value of the property to be sold to be shown before bidding.

In Article 129 of the Enforcement and Bankruptcy Law, titled "Auction," it is stipulated as follows: "The provision of Article 115 also applies to the auctioning of real estate." The first and second auctions are initiated by the sales officer at the place, day, and time determined in the announcement, with the highest bid submitted electronically. The sale of the real estate is auctioned by the Sales Office to the highest bid submitted electronically by being called out three times. The auction price must exceed fifty percent of the estimated price of the real estate, as well as the costs of liquidation and distribution of money. As in the sale of movables, if no buyer emerges in the first auction or the written amount required is not reached, the sale is postponed by the sales officer. As in the sale of movables, in the sale of real estate, if no buyer emerges in the second auction or the conditions are not met, the sale request lapses by the sales office. In the subsequent process, a new sale request must be made to the Sales Office.

There are some consequences of the auction in real estate sales. Namely; in Article 130 of the Enforcement and Bankruptcy Law, titled "Payment of the Auction Price," it is stipulated as follows: "The auction buyer is obliged to pay the sale price in cash within seven days from the publication of the auction result report, even if the annulment of the auction has been requested."

The sales office grants the buyer a period not exceeding ten days for the payment of the sale price. During this period, the real estate is maintained by the sales office, with the risk and costs belonging to the buyer.

In Article 131 of the Enforcement and Bankruptcy Law, titled "Management of Real Estate During the Payment Period," it is stipulated as follows: "If a deadline has been granted for the payment of the sale price, the real estate is managed by the enforcement office until the money is paid, with the risk and costs belonging to the buyer. During this period, no registration can be made in the land registry without the permission of the enforcement office. The enforcement office may also request that a security be shown to guarantee the sale price."

During this period, registration procedures are not carried out at the relevant land registry office without the permission of the sales office. If the sales office deems it necessary, it has the right to request additional security to be provided to ensure the supply of the sale price.

Article 135 of the Enforcement and Bankruptcy Law, titled "Notification to the Land Registry for Registration and Forced Eviction," provides as follows: “After the immovable is auctioned to the buyer and the price is collected, a memorandum is written to the land registry in accordance with the period specified in Article (134) for it to be registered in the name of the buyer. (Amended 6/6/1985-3222/17 art.) If the immovable is occupied by the debtor or by others without relying on an act proven by an official document to have been made prior to the attachment, an eviction order is notified to the debtor or the occupant for eviction within fifteen days. If it is not vacated within this period, they shall be forcibly removed and the immovable shall be delivered to the buyer. (Additional sentence: 24/11/2021-7343/28 art.) A person who purchases the immovable from the tenderer after the registration of the immovable in the name of the tenderer, but before the eviction has taken place, also has the right to request eviction in accordance with this paragraph.”

In accordance with the Enforcement and Bankruptcy Law, when the price is paid by the tenderer and the tender is finalized, the registration procedures for the immovable are carried out by writing a memorandum to the relevant land registry office. For the tender to be finalized, no tender annulment lawsuit should be filed within 7 days from the tender date, or any such lawsuit filed must be dismissed. Checking whether a tender annulment lawsuit has been filed in the Civil Court of Peace must be performed during the land registration process.

Article 134 of the Enforcement and Bankruptcy Law, titled "Result and Annulment of the Tender," provides as follows: “The buyer to whom the immovable is auctioned by the enforcement office acquires the ownership of that immovable. (Additional sentence: 17/7/2003-4949/38 art.) How the immovable will be preserved and managed until the tender is finalized shall be decided by the enforcement office. (Additional sentences: 24/11/2021-7343/27 art.) Upon the request of the tenderer, the enforcement office shall order the person residing in the sold immovable based on a rental agreement to deposit the rent, or in other cases, the person using the immovable to deposit the monthly usage fee determined by an expert, to the enforcement office. If the relevant person does not deposit the rent or the determined fee to the enforcement office despite the warning, the provision of Article 356 shall be applied by analogy. The amount deposited in this way shall be paid to the right holder according to the result of the tender.”

The registration status at the land registry carried out by the sales office has a clarifying nature. If the buyer pays the tender price, Article 133 of the Enforcement and Bankruptcy Law finds its field of application. If the buyer does not pay the tender price immediately or within the given period following the auction of the immovable to them, the tender decision is revoked by the sales officer, and the security deposit is confiscated to be set off against the price the buyer is obliged to pay. If the conditions are suitable and the address of the bidder who made the highest bid before the tenderer is known, they are informed that they can take it within three days at the price they declared in the tender by making a notification. If they agree to purchase it, they acquire the status of the tenderer at this point. If they remain unresponsive to the notification or do not accept, the immovable is put up for auction by the sales office without delay. The auction is no longer notified to the relevant parties but is instead announced at least seven days before the sale. Following compliance with the relevant articles of the Enforcement and Bankruptcy Law in the auction, the person who pays the highest price for the immovable acquires the status of the tenderer. All buyers who participate in the tender but subsequently fail to deposit the tender price and cause the annulment of the tender, along with their guarantors, are held jointly and severally liable for the difference between the price they offered and the final tender price, as well as for other damages and default interest. The differences are deducted from the deposited security amount.

Procedure for Annulment of Tender Following Partition Lawsuits

The issue of tender annulment is the most important part of the sales stage. It is regulated in detail in Article 134 of the Enforcement and Bankruptcy Law, titled "Result and Annulment of the Tender." In the event that situations that may lead to the annulment of the tender occur, the tender annulment lawsuit is one of the most frequently encountered lawsuits in practice. Situations that may cause the annulment of the tender can occur during the preparation phase of the tender or during the execution of the tender. The buyer may have been misled by the parties or third parties through tender rigging. Failure to comply with the announcement procedures during the tender preparation phase, failure to adhere to statutory periods, or the absence of the specifications in the sales announcement are accepted as reasons that may constitute tender annulment. At the point of conducting the tender, it is required to act in accordance with Articles 126 and 129 of the Enforcement and Bankruptcy Law. Otherwise, grounds are created for the emergence of behaviors that may lead to the annulment of the tender. For example, the sales officer conducting the tender failing to shout three times is a procedural violation related to the annulment of the tender. The situation of tender rigging is also among the reasons that constitute tender annulment. Demonstrating states and behaviors that prevent the tender from being conducted properly are accepted as factors constituting tender annulment.

Article 235 of the Turkish Penal Code, titled "Tender Rigging," provides as follows: “A person who rigs a tender regarding the purchase or sale of goods or services or leases made on behalf of public institutions or organizations, or construction tenders, shall be sentenced to imprisonment for a term of three to seven years.

(2) In the following cases, a tender is deemed to have been rigged:

a) Through fraudulent behavior;

1. Preventing persons who have the competence or conditions to participate in the tender from participating in the tender or the transactions in the tender process,

2. Enabling persons who do not have the competence or conditions to participate in the tender to participate in the tender,

3. Excluding the offered goods from evaluation by claiming they do not have the qualities specified in the specifications, even though they do,

4. Including the offered goods in the evaluation by claiming they have the qualities specified in the specifications, even though they do not.

b) Enabling others to access information related to the bids that should be kept confidential according to the tender legislation or specifications.

c) Preventing persons who have the competence or conditions to participate in the tender from participating in the tender or the transactions in the tender process by using force or threats, or through other unlawful behaviors.

d) Persons who wish to participate or are participating in the tender making an open or secret agreement among themselves to influence the tender conditions and especially the price.

(3) (Amended: 11/4/2013-6459/12 art.) Regarding the crime of tender rigging;

a) If committed by using force or threats, the lower limit of the base sentence cannot be less than five years. However, if the qualified states of the crime of intentional injury or threat requiring a more severe penalty occur, a sentence shall also be imposed for these crimes.

b) If no damage has occurred to the relevant public institution or organization as a result of its commission, except for the cases specified in clause (a) of this paragraph, the perpetrator shall be sentenced to imprisonment for a term of one to three years.

(4) Officials who obtain benefits due to tender rigging shall also be punished according to the relevant crime provision for this reason.

(5) The provisions of the above paragraphs also apply in cases where tender rigging is committed in auctions or reductions made through public institutions or organizations, or in the purchase or sale of goods or services or leases made on behalf of professional organizations in the nature of public institutions, companies established with the participation of public institutions or organizations or professional organizations in the nature of public institutions, foundations operating within them, associations working for public benefit, or cooperatives.”

Tender rigging, which is regulated as a serious crime within the scope of the Turkish Penal Code, is counted as cases where the tender is rigged through fraudulent behaviors such as preventing persons who have the competence or conditions to participate in the tender from participating in the tender or the transactions in the tender process, enabling persons who do not have the competence or conditions to participate in the tender to participate in the tender, excluding the offered goods from evaluation by claiming they do not have the qualities specified in the specifications, even though they do, and including the offered goods in the evaluation by claiming they have the qualities specified in the specifications, even though they do not. The creditor being mistaken or misled regarding the essential elements of the sold item is also a reason for tender annulment. For example, a discrepancy in information between the surface area of the immovable stated in the specifications and the actual situation is a reason for tender annulment.

The persons who have the right to request the annulment of the tender are regulated in detail in the Enforcement and Bankruptcy Law.

Article 134 of the Enforcement and Bankruptcy Law, titled "Result and Annulment of the Tender," provides as follows: “The annulment of the tender can be requested by the creditor who requested the sale, the debtor, the persons registered in the official registry of the attached property, and holders of limited real rights, as well as those who participated in the tender by bidding, within seven days from the tender date, by way of complaint to the enforcement court, provided that they show an address within the country, including the reasons written in Article 281 of the Turkish Code of Obligations No. 6098 dated 11/1/2011. It is accepted that the interested parties became aware of the irregularities in the proceedings that took place until the moment the tender was held, at the latest on the day of the tender.”

Persons authorized to file for tender annulment in a partition lawsuit are: stakeholders, heirs, the creditor if the lawsuit was filed by a creditor of one of the stakeholders, interested parties in the land registry, and those who participated in the tender by bidding. They have the right to file a tender annulment lawsuit as persons who will be affected by the irregular conduct of the tender.

In a tender annulment lawsuit, the application must be made by applying to the Civil Court of Peace at the latest within 7 days from the day the tender was held. As a rule, it is accepted that the reason for the annulment of the tender is learned by the interested parties at the latest on the day of the tender. There are also exceptional cases.

Exceptional situations are regulated in Article 134 of the Enforcement and Bankruptcy Law. If the sales announcement has not been notified to the parties, or if it is learned later that there was a mistake in the essential elements of the sold good or that the tender was rigged, the complaint period is accepted as seven days from the date of learning, provided that at most one year has passed since the tender.

The competent and authorized court in tender annulment lawsuits is the Civil Court of Peace, as in the partition lawsuit. The decision regarding the acceptance or rejection of the tender annulment request will be made by the judge of the Civil Court of Peace. The judge of the Civil Court of Peace first invites the parties by setting a hearing date within twenty days following the tender annulment request. The plaintiff in the tender annulment lawsuit is obliged to prove that their rights have been violated and their interests harmed by alleging that there was corruption in the tender, and to report a residential address within the country. If the request is rejected as a result of the trial held by the Civil Court of Peace in the tender annulment lawsuit, it is decided that the plaintiff shall pay a fine at the rate of ten percent of the tender price. No fine is imposed in a rejection decision made during the examination without entering into the merits of the case. The Civil Court of Peace decides to annul the tender if it finds the allegations and requests of the plaintiff in the tender annulment lawsuit to be well-founded. If the decision regarding the annulment of the tender given by the Civil Court of Peace becomes final after no appeal, the ownership right acquired by the buyer through the tender also ends. If the immovable has been registered in the land registry, the registration is cancelled and the ownership is returned to the previous partners. At this point, the money paid by the buyer is refunded. If the decision becomes final, the sales procedures are carried out again by the Sales Office upon request. The rights of bona fide third parties who acquired rights on the immovable before the annulment of the tender are protected.

The most important issue to be considered is that the buyer is obliged to pay the tender price in cash within the legal period granted to them, even if the annulment of the tender has been requested. If the Civil Court of Peace decides to annul the tender, the paid money will be refunded to the buyer. Until the tender annulment lawsuit is finalized, the tender price is kept by the sales office by being accrued in the bank. After the tender annulment lawsuit is finalized, the tender price is paid to the right holders along with the accrued amounts.

CONCLUSION

The partition lawsuit is a special type of lawsuit that is very different from other types of lawsuits and has its own rules. If it is not possible for all stakeholders to share movable or immovable property in shared ownership, the partnership is liquidated using various methods. As I mentioned in detail above, the most important result of a partition lawsuit is that there is no losing party as a result of the lawsuit. When a judicial termination occurs in a partition lawsuit in shared ownership, there is no reduction in asset value, but the shares of the stakeholders are determined in kind or in cash. In a partition lawsuit, if accepted by the Civil Court of Peace Judge, the property is subject to sharing by being converted into cash, in kind, or into condominium ownership. If the lawsuit is dismissed, no changes are made to the current situation. Waiving a partition lawsuit does not prevent the defendant parties from continuing the lawsuit. In a partition lawsuit, the Civil Court of Peace judge may have to use their discretionary power by considering the high interests of the parties where necessary within the framework of the rules. The main purpose is for each stakeholder to reach their right born from the law in the sharing of the property subject to the partition lawsuit, even if it is years later, without any impairment. The lawsuit path we encounter most frequently to solve the problems experienced in the sharing of the inheritance left by the decedent among heirs in inheritance law is the partition lawsuit. I hope that the right is protected by the judge of the Civil Court of Peace issuing a sale decision as a result of the trial, and the sales office selling the movable or immovable within the framework of the rules and distributing the price to the shareholders.

BIBLIOGRAPHY

Ministry of Justice, (2017). ‘’Court-Based Mediation Services Handbook’’, General Directorate of Legal Affairs, Department of Mediation, Council of Europe.

Akıntürk, T. (2009). Property Law, Beta Publishing, Istanbul.

Akyol, F. (2012). Problems and Solution Suggestions Encountered in the Acquisition of Immovables by Foreign Natural and Legal Persons. Ministry of Environment and Urbanization Land Registry and Cadastre Specialization Thesis, Ankara.

Arslan, İ. and Kırmızı, M. (2012). Liquidation of Stakeholdership and Partnership (Joint Ownership). Bilge Publishing, Ankara.

Ayan, M. (2013). Property Law-II-Ownership. Konya. Ayan, M. (2013). Property Law-III-Limited Real Rights. Konya.

Aybay, A. (1966). Partition in Joint Ownership. Istanbul.

Aybay/Hatemi (2012). Property Law. Vedat Bookselling, Istanbul. Ayiter, N. (1983). Property Law (Short Textbook). Savaş Publishing, Ankara.

Balcı, Ş. (2004). Sharing (Partition) Lawsuits.

Bilgili, F. and Demirkapı, E. (2012). Company Law. Dora Publications, Adana.

Demir, Ş., Mediation in Partition. Ankara Bar Association Journal, 2016/1.

Dişel, B. (2014). Pursuit Friendship in Enforcement Law. On İki Levha Publishing, Istanbul.

Doğan, V. (2010). Turkish Citizenship Law. Seçkin Publishing, Ankara.

Ekşi, N. (2012). Acquisition of Immovables by Foreigners in Turkey. Beta Publishing, Istanbul.

Ercan, İ. (2012). Civil Procedure Law. On İki Levha Publishing, Istanbul.

Ercan, İ. (2013). Enforcement and Bankruptcy Law. On İki Levha Publishing, Istanbul.

Erdoğan, C. (1999). Partition (İzaleyi Şuyuu) Lawsuits. Seçkin Publishing, Ankara.

Erdoğan, H. (2008). Partition (İzalei Şüyu) Lawsuits. Adalet Publishing, Ankara.

Eren, F. (2016). Ownership Law. Yetkin Publications, Ankara.

Ertaş, Ş., Serdar, İ. and Gürpınar, D. (2008). Property Law. Seçkin Publishing, Ankara.

Ertaş, Ş. (2012). Property Law, İzmir. Esener, T. and Güven, K. (2012). Property Law, Yetkin Publications, Ankara.

Gümüş, M. A. (2007). New Annotations Brought by the Turkish Civil Code. Vedat Bookselling, Istanbul.

Gözler, K. (2010). Administrative Law Lessons. Ekin Bookstore, Bursa. 74

İmamoğlu, M. A. (2006). Ownership and Land Systems. Yazıt Publishing-Distribution, Ankara.

Karahacıoğlu, A. H. (1985). Partition (Şuyuun İzalesi) Lawsuits. Olgaç Printing House, Ankara.

Karahacıoğlu, A. H. (1994). Partition (Şuyuun İzalesi).

Karahasan, M. R. (2002). New Turkish Civil Code Property Law.

Kuru, B., Arslan, R. and Yılmaz, E. (2012). Enforcement and Bankruptcy Law. Yetkin Publications, Ankara.

Kurşat, Z. (2008). Termination of Shared Ownership. Arıkan Publishing.

Küley, M. M. (1959). Collective Ownership. Şermet Printing House, Istanbul.

Levi, S. (2006). Acquisition of Immovable Property by Foreigners. Legal Bookstore, Istanbul.

Moore, C. W. (n.d.). The Mediation Process-Practical Strategies For Resolving Disputes, Nobel Academic Publishing.

Nohutçu, A. and Ündal, M. (2013). Constitutional Law. Savaş Publishing, Ankara.

Oğuzman, M. K., Seliçi, Ö. and Oktay-Özdemir, S. (2016). Property Law. Filiz Bookstore, Istanbul.

Orman, P. (2012). Acquisition of Immovables by Foreigners and Turkish Citizens in Selected EU Countries. Ministry of Environment and Urbanization Land Registry and Cadastre Specialization Thesis, Ankara.

Öğüz, T. (1995). Partition Obstacles in Joint Ownership. Istanbul.

Özaykut, S. (2014). Lawsuits Based on Property Rights, Adalet Publishing, Ankara.

Özbudun, E. (2009). Turkish Constitutional Law. Yetkin Publications, Ankara.

Özcan, Z. (2013). Powers and Obligations of Stakeholders in Shared Ownership, Yetkin Publications, Ankara.

Özgür, Y. (1995). Termination of Joint Ownership. Kazancı Law Resources No: 14, Istanbul.

Özmen, E. S. (1992). Lawsuit for Removal from Stakeholdership in Turkish Law. Kazancı Law Publications: 108, Ankara.

Öztaş, İ. (2011). Stakeholder's Right to Use and Benefit in Shared Ownership. 12 Levha Publishing, Istanbul.

Pekcanıtez, H., Atalay, O. and Özekes, M. (2011). Civil Procedure Law. Yetkin Publications, Ankara.

Pekcanıtez, H., Atalay, O. and Özekes, M. (2013). Basic Information on Enforcement and Bankruptcy Law. Yetkin Publications, Ankara.

Reisoğlu, S. (Fifth Edition). Turkish Property Law, Ankara University Faculty of Political Sciences Publications.

Ruhi, A. C. (2016). Partition Suits. Seçkin Publishing, Ankara.

Ruhi, C. and Ruhi, A. C. (2017). Dissolution of Joint Ownership, Termination of Partnership, Partition Suits. Seçkin Publishing, Ankara.

Sarıca, A. (2013). Commercial Law. Savaş Publishing House, Ankara.

Sarıhan, B. (2000). Termination of Co-Ownership, Journal of Selçuk University Faculty of Law, 8(1-2).

Sirmen, L. (2016). Property Law, Yetkin Publications, Ankara.

Şengöz, Ç. (2018). The Concept of Shared Ownership and Termination of Shared Ownership. Yetkin Publications, Ankara.

Şimşek, S. (2010). Suits for the Dissolution of Partnership. Terazi Law Journal, (52).

Topuz, G. (2009). Seizure and Sale of Shared Ownership Share, Journal of Selçuk University Faculty of Law, 17(1).

Topuz, G. and Topuz, S. (2008). Joinder of Parties of Heirs in Inheritance Partnership, Ankara Bar Review, (3).

Tuğrul, S. (2004). Property Right and Its Limitation in Terms of Public Law, Kazancı Law Publications, Istanbul.

Ünal, M. and Başpınar, V. (2017). Formal Property Law. Yetkin Publications, Ankara.

Yabancı, T. (1997). Suit for the Dissolution of Partnership. Master's Thesis. Ankara University, Institute of Social Sciences, Ankara.

CURRICULUM VITAE

Name and SURNAME: Gizem GONCE

EDUCATION

High School Graduated: Mustafa Elmas Arıcı Anatolian High School, 2008

Undergraduate Degree: Kadir Has University, Faculty of Law, 2015

Foreign Language: English

E-Mail: gizemgonce@hotmail.com