Department: PRIVATE LAW

Department: PRIVATE LAW

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

Project Supervisor: Assoc. Prof. Cem AKBIYIK

JUNE 2022

C O N T E N T S

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

PART ONE

THE LAWSUIT FOR DISSOLUTION OF PARTNERSHIP

1.1. Partition of the Property Subject to Joint Ownership.......................................8

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

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

1.2. Partition in Kind............................................................................................................11

1.3. Partition by Conversion into Money (Cash Partition) ........................................16

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

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

1.5.1. The Allocated Property Being Dedicated to a Permanent Purpose............. 20

PART 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 the Plaintiff ...........................................................................................22

2.1.4. Capacity of the 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. Appeal Procedure (Istinaf)................................................................................32

3.3.1.2. Cassation Procedure (Temyiz).........................................................................32

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

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

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

3.4. Court Fees, Litigation Costs, and Attorney’s Fees ..............................................35

3.4.1. Court Fees............................................................................................................36

3.4.2. Litigation Costs....................................................................................................37

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

3.5. General Overview ........................................................................................................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 Eligible to Request Annulment of the Tender ...................................47

3.8.3. Period 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 forms of termination of joint ownership, and in this context, the types of partition have been addressed. Primarily, partition in kind, partition through conversion into money, and partition through conversion into condominium ownership have been focused on. Finally, the "Lawsuit for Dissolution of Partnership" has been handled in terms of procedural provisions; the thesis is concluded by writing the parts regarding the filing to the conclusion of the lawsuit, the trial and procedural actions taken during this process, the drafting of the reasoned decision, the litigation costs, and the execution of the lawsuit. One of the aims 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 tenancy (elbirliği mülkiyeti) can have adverse consequences for other owners, and to draw attention to the point that, if possible, the authority to file a lawsuit for the conversion of joint tenancy into common ownership (paylı mülkiyet) should primarily be granted to the creditor. Keywords: Lawsuit for Dissolution of Partnership, Suit for Partition, Ownership, Joint Tenancy, Common 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 the theoretical information and within the frame of concrete cases as one of the termination forms of the common ownership, in this context the types of partition are examined. At 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 and procedure proceedings, reasoned decision in writing, 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. Main aims of the thesis is 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

FOREWORD

The subject of our thesis is the "Lawsuit for Dissolution of Partnership." In the conclusion part, the authority to file a lawsuit granted to the creditor in a lawsuit for dissolution of partnership has been examined. In this context, general information has been provided starting from the basic subject regarding the concept of ownership and co-ownership, the lawsuit for dissolution of partnership has been explained comprehensively, and the issues regarding procedure and execution have been covered in the final section.

Gizem GONCE

Istanbul, 2022

INTRODUCTION

Purpose of the Topic: The lawsuit for dissolution of partnership is a type of lawsuit that contains unique features, is subject to different procedural applications compared to many other types of lawsuits, and in its essence, constitutes one of the best examples of co-ownership. The purpose of our topic is to explain all these features in detail, to make them understandable, and to emphasize their importance for the owners of the right of property in terms of their consequences. Importance of the Topic: The lawsuit for dissolution of partnership concerns the termination of co-ownership. As a result of this lawsuit, multiple owners terminate the property right they possess together and transition to individual ownership. In this aspect, the fact that the property rights—which are universal and absolute real rights—of the partners in joint tenancy or common ownership are directly affected demonstrates the importance of the subject. Place of the Topic in Law: In our Turkish legal system, the lawsuit for dissolution of partnership falls under the field of Private Law within the scope of Civil Law. Provisions regarding its essence are included in Article 698 and subsequent articles of the Turkish Civil Code No. 4721. Regulations regarding 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 Topic: Our topic is quite broad in scope due to its importance in our legal system. Therefore, in our study, primarily, the subjects of joint tenancy and common ownership have been covered under the title of co-ownership and explained in detail. In the second part, the "Lawsuit for Dissolution of Partnership," which forms the title of our study, has been examined in terms of its essence within the framework of Articles 698 et seq. of the TMK. In the third part, our study has been processed within the scope of procedural and enforcement 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 Common Ownership

In the event that it is decided to terminate the common ownership among the stakeholders and to physically partition the property among the stakeholders, there are certain legal procedures to be applied within the scope of the Turkish Civil Code. Namely; the partition of the property by all stakeholders through mutual agreement is called consensual partition. However, in the event that an agreement cannot be reached among the stakeholders, the situation where partition is realized by at least one of the stakeholders filing a lawsuit is called judicial partition.

Within the scope of the Turkish Civil Code, a lawsuit for the dissolution of partnership must be filed for the partition and termination of an immovable property under common ownership. In this lawsuit, there are three types of partition methods resulting from the judge's decision to accept the lawsuit. The first method, partition in kind, also known as division; the second method, partition by conversion into money, also known as cash division; and the third method, partition by conversion into condominium ownership are accepted. Each method has its own procedures and rules, and it is necessary to render a decision within the framework of rules that will best meet the needs of the parties and protect their interests to the highest degree. Otherwise, the reality that stakeholders may experience a loss of rights will emerge.

Consensual Partition Situation of Stakeholders

Stakeholders have the right to partition the property subject to inheritance by making a partition agreement through a joint decision. It is possible for the property subject to inheritance to be partitioned by all stakeholders taking a decision unanimously. If even one stakeholder does not have the intention to partition, or if the conditions for partition are not suitable in the partition of the property subject to partnership, partition is carried out through a lawsuit. Partition made by stakeholders reaching an agreement among themselves is called consensual partition. In practice, consensual partition can be done in the form of partition in kind as well as by selling the property subject to inheritance and sharing the sales proceeds among the stakeholders. In Article 705 of the Turkish Civil Code, titled "Acquisition of Immovable Property," it is stated: “Acquisition of immovable property is through registration. In cases of inheritance, court decision, compulsory enforcement, occupation, expropriation, and other cases stipulated in the law, ownership is acquired before registration. However, in these cases, the ability of the owner to carry out disposal 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. If partition agreements are not made in the official written form regulated within the framework of the Turkish Civil Code, their validity is not accepted. The registration of the part of the immovable property that the stakeholders have allocated for themselves cannot be realized because it has not been done in an official written form.

Judicial Partition Situation of Stakeholders

In the event that stakeholders reach an agreement on the dissolution of common ownership and make a partition agreement, there is no longer a need for judicial partition. When stakeholders cannot reach an agreement on the dissolution of common ownership, common ownership is terminated through a lawsuit. However, there are differences in opinions in the doctrine and Court of Cassation decisions regarding the nature of the lawsuit. While some authors state that this lawsuit is a performance lawsuit (eda davası), others express that it is not a performance lawsuit but rather a constitutive (yenilik doğuran) lawsuit.

Article 105 of the Code of Civil Procedure has regulated the content of the 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 stated with this provision. The issue most frequently encountered in a lawsuit for dissolution of partnership is that the stakeholder requesting the partition of the property subject to common ownership gains the right to request the partition of the property subject to ownership from other stakeholders by applying to the Civil Court of Peace. Since the termination of the common property right established in a joint manner will be in question as a result of the lawsuit for dissolution of partnership, it has a constitutive characteristic even if it is of a destructive nature 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 common ownership, common ownership can be terminated through a lawsuit, in other words, in a judicial manner, if the stakeholders cannot reach an agreement.

In Article 698 of the Turkish Civil Code, titled "Termination of Common Ownership," it is stated that each of the stakeholders has the right to request the partition of the property unless there is an obligation to continue the common ownership due to a legal transaction or the property being dedicated to a permanent purpose.

Termination of common ownership

Request for partition

Turkish Civil Code Article 698- Unless there is an obligation to continue the common ownership due to a legal transaction or the property being dedicated to a permanent purpose, each of the stakeholders may request the partition of the property. The right to request partition may be limited by a legal transaction for a maximum period of ten years. Contracts regarding the continuation of common 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 stakeholder has the right to request the termination of common ownership in accordance with the clear provision of the law. This request of the stakeholders is accepted as a constitutive right of a destructive nature, which is the right to request partition. The main reason for it being of a destructive nature is that it is a state where the partnership among the stakeholders ends as a result of the request of one stakeholder. The property rights of the stakeholders in common ownership over their own shares are restricted by the property rights of other stakeholders. A lawsuit for dissolution of partnership can be filed if there is no legal obstacle to the continuation of the partnership. In the event that one of the stakeholders uses the right to file a lawsuit for dissolution of partnership, this lawsuit is directed at all stakeholders, in addition to the fact that the responsibilities of other stakeholders regarding partition continue.

Partition (Division) in Kind of Stakeholders

This occurs when the property intended to be shared among stakeholders is divided into pieces, which are then distributed to the stakeholders in proportion to their shares, allowing a single person to acquire ownership. In distributions made through partition in kind, the individual acquires the status of sole owner. Within the scope of the Turkish Civil Code, several conditions are stipulated for the partition in kind of an inherited property among stakeholders. The most important rule for partition in kind is that it can only be applied if there is no decrease in the financial value of the property subject to partition. The second rule to consider is whether the property is suitable for partition in kind. If a stakeholder or stakeholders file a lawsuit for the dissolution of partnership in a Civil Court of Peace due to the partition of the property, the first issue the judge must examine is whether the property in question is suitable for partition in kind. In a lawsuit for the dissolution of partnership, if the property is real estate, it is requested that the title deed records and cadastral maps of the property be sent by writing a memorandum to the relevant Land Registry Office. Following the submission of the title deed information and details regarding the property by the relevant Land Registry Office, if any errors or deficiencies are detected, the judge of the Civil Court of Peace grants the parties a period to rectify these deficiencies. It is required that all stakeholders have not entered into a contract in which they have reached a consensus not to refuse or to accept partition in kind, in other words, division. In the presence of such a contract, the Civil Court of Peace judge can no longer decide on the partition in kind of the property subject to the lawsuit. The inclusion of the phrase “if an agreement cannot be reached on the form of partition” in the text of the Turkish Civil Code article draws attention to the existence of the joint will of the stakeholders. In a lawsuit for the dissolution of partnership, if there are requests by a stakeholder or stakeholders for partition by way of sale and partition by way of division in kind, and if the division of the property is possible in light of the information and documents sent by the Land Registry Office, the fact that the lawsuit was opened by the stakeholder requesting partition by sale will not be taken into consideration, and dissolution of partnership by way of partition in kind may occur. In lawsuits for the dissolution of partnership, priority is always given to partition in kind. If the plaintiff has requested partition by sale and the defendant has a request for partition in kind, since the priority is partition in kind, the Civil Court of Peace will decide on the dissolution of partnership by way of partition in kind, provided the conditions are met.

In Article 699 of the Turkish Civil Code, titled "Form of Partition"; Partition is carried out by dividing the property in kind or by selling it through bargaining or auction and dividing the proceeds. If an agreement cannot be reached on the form of partition, upon the request of one of the stakeholders, the judge decides to divide the property in kind, and if the values of the divided parts do not correspond, to provide equalization by adding money to the part with the lower value. If the request for division is not considered suitable for the situation and conditions, and especially if the shared property cannot be divided without significant loss of value, a sale by public auction is ordered. Deciding to conduct the sale by auction among stakeholders depends on the consent of all stakeholders.

In the partition of inherited property by way of partition in kind, the existence of a contract between the stakeholders is primarily sought. If the contract made between the stakeholders is deemed appropriate by the Civil Court of Peace judge, the decision is made within the framework of the agreement. As I have detailed above, the Civil Court of Peace judge decides within the framework of the agreement between the stakeholders after examining whether the conditions sufficient for the partition in kind of the inherited real estate are met.

When the Civil Court of Peace judge decides to dissolve the partnership by partitioning the inherited property in kind among the stakeholders, the divided parts are allocated to the ownership of the relevant stakeholders. In practice, disputes arise when the divided parts are not equal. In this regard, if the values of the parts divided by the Civil Court of Peace judge are not equal, equalization is provided by making a cash payment for the part with the lower value. In a lawsuit for the dissolution of partnership, 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 between the stakeholders, the Civil Court of Peace judge cannot decide by giving the entire real estate in question to one or a few stakeholders. Once the decision made by the Civil Court of Peace judge to dissolve the partnership by way of partition in kind becomes final without any objection by 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. Under the Turkish Civil Code, partition is carried out by dividing the property subject to the lawsuit in kind or by selling it through bargaining or public auction and dividing the proceeds. If it is possible to partition the property subject to the dissolution of partnership lawsuit among the stakeholders in kind, joint ownership is terminated using 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 the partition in kind of the real estate is possible, and a partition project is prepared for the real estate subject to the lawsuit. According to this project, it is investigated whether the partition is possible according to the Zoning Law and relevant regulations from the Municipality or Provincial Administration Board where the real estate is located. As a result of this investigation, if partition in kind of the real estate is not possible, a decision for dissolution of partnership by way of sale is made.

In the dissolution of partnership 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 partition of parts near a creek bed versus parts near a road often arise in practice. In the established jurisprudence of the Supreme Court, the method of drawing lots is applied to resolve these problems. The allocation of divided parts among stakeholders is done through drawing lots in the presence of those present at the hearing. Although there is no mandatory provision regarding this matter within the scope of the Turkish Civil Code, the judge of the Civil Court of Peace can directly perform the allocation process regarding the partition of the property subject to the lawsuit among the stakeholders. However, the lot-drawing method is considered appropriate as it is a method where the parties can exercise their will, which we encounter more frequently in practice. As I have stated in detail, the Civil Court of Peace judge has discretionary power 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 legal provisions. The main purpose in dissolution of partnership lawsuits is for the stakeholders to reach a conclusion within the framework of a positive agreement ground by reaching a consensus on the property subject to the lawsuit. In a dissolution of partnership lawsuit, 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. That is to say; in a dissolution of partnership lawsuit, the plaintiff and defendant parties have the same results at the judgment stage of the case. For this reason, if there is a contract between the stakeholders regarding the partition of the real estate subject to the lawsuit in dissolution of partnership lawsuits; the Civil Court of Peace judge is bound by the contract. If there is a decision taken according to the unanimous procedure among the stakeholders for the dissolution of the partnership, the Civil Court of Peace judge cannot establish a provision in the opposite direction. To give an 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 Civil Court of Peace judge cannot decide to dissolve the partnership by sale. In another example; if an agreement has been reached on the partition of the real estate subject to the lawsuit by public auction but there is a dispute regarding whether the auction will be held among the stakeholders or open to everyone, the Civil Court of Peace judge is only authorized to resolve the issue on which there is no consensus. In this regard, according to procedural rules, they cannot decide on partition in kind or sale by bargaining method. The Civil Court of Peace must comply with the joint decisions taken by the stakeholders. The decision given by the Civil Court of Peace judge in dissolution of partnership lawsuits does not have an innovative feature within the framework of procedural rules. If the real estate subject to the lawsuit is not recorded by writing a memorandum to the relevant Land Registry Office by dividing it by the Civil Court of Peace judge, the divided parts have no legal meaning. One of the most important issues in dissolution of partnership lawsuits is the transfer of ownership to the stakeholders.

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

In Article 716 of the Turkish Civil Code, titled "Right to request registration"; "A person who has a personal right to request the registration of ownership in his own name from the owner based on a legal cause that will form the basis for the acquisition of ownership may request the judge to transfer the 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 done directly. Changes in the ownership of a real estate due to the property regime between spouses are registered directly in the land registry at 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 done directly.

In Article 705 of the Turkish Civil Code, titled "Registration"; "The acquisition of real estate ownership occurs through registration. In cases of inheritance, court decision, compulsory execution, occupation, expropriation, and other cases stipulated by 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."

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 stipulated by law, ownership will pass to the stakeholders in the decision given by way of allocation regarding the partition in kind of the real estate subject to the lawsuit.

In Article 134 of the Enforcement and Bankruptcy Law, titled "Result and annulment of the tender"; "The buyer to whom the real estate is tendered by the enforcement office acquires the ownership of that real estate," with this provision, ownership is realized the moment it is tendered to the buyer while dissolving the partnership in a sale made by public auction. This regulation has been made for real estate. The procedures and principles regarding shared ownership are also applied to joint ownership. However, first, the partnership relationship subject to joint ownership must be eliminated. By filing a lawsuit, the conversion of joint ownership into shared ownership should be requested, and the dissolution of the partnership should be requested. This is only possible in inheritance partnerships. It is not possible to convert joint ownership other than inheritance partnerships into shared ownership. It is possible for heirs to file a lawsuit for the dissolution of partnership with their requests for 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 the regulation in Article 648 of the Turkish Civil Code, titled "Participation of a Trustee in Partition"; "A creditor who has taken over or seized the share of an heir in an opened inheritance, or who has a certificate of insolvency against the heir, may request the peace judge to appoint a trustee to participate in the partition on behalf of this heir," the rights of creditors are protected.

Partition of Stakeholders by Conversion to Money (Partition in Cash)

In Article 699 of the Turkish Civil Code, titled "Form of Partition"; "Partition is carried out by dividing the property in kind or by selling it through bargaining or auction and dividing the proceeds. If an agreement cannot be reached on the form of partition, upon the request of one of the stakeholders, the judge decides to divide the property in kind, and if the values of the divided parts do not correspond, to provide equalization by adding money to the part with the lower value. If the request for division is not considered suitable for the situation and conditions, and especially if the shared property cannot be divided without significant loss of value, a sale by public auction is ordered. Deciding to conduct the sale by auction among stakeholders depends on the consent of all stakeholders," what needs to be done regarding the request for division is stipulated. If the request for division is not considered suitable for the situation and conditions within the scope of the Turkish Civil Code, and especially if the shared property cannot be divided without significant loss of value, sale by public auction is possible. If it is not possible to divide the real estate subject to the lawsuit in kind, the dissolution of partnership 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 stated; the Civil Court of Peace judge has the discretionary power regarding the suitability of the situation and conditions. As I have stated in detail above, the Civil Court of Peace judge makes a decision by evaluating according to the qualities of the real estate subject to the lawsuit and the characteristics of the concrete case. For example; if the value of the shared property is higher than the sum of the values of the individual shares when partition is made, this situation is not suitable for partition in kind. The sale of the real estate by public auction can be made open to everyone or only among the stakeholders.

In the 3rd clause of Article 699 of the Turkish Civil Code, titled "Form of Partition"; "If the request for division is not considered suitable for the situation and conditions, and especially if the shared property cannot be divided without significant loss of value, a sale by public auction is ordered. Deciding to conduct the sale by auction among stakeholders depends on the consent of all stakeholders," it is stipulated that the explicit consent of all stakeholders is required. If requested, the Civil Court of Peace judge also has the authority to decide on sale by bargaining method. However, in this regard, no contrary agreement must have been made and no decision must have been taken by the stakeholders.

Partition by Conversion to Condominium Ownership

Apart from partitioning the subject shared property in kind or in cash, it is also possible to partition it by converting it into condominium ownership. Although this issue is not frequently encountered in practice, it is regulated in detail in the Condominium Ownership Law.

In Article 10 of the Condominium Ownership Law, titled "Establishment of Condominium Ownership and Condominium Easement"; "Condominium ownership and condominium 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 before the ownership of the entire main real estate is converted into (Condominium ownership).

(Amended third paragraph: 14/11/2007-5711/3 art.) When 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 building that present integrity in terms of economy or use, such as a hotel, business, or commercial place, can be registered as a single independent section in the condominium ownership registry. For such registration to be made, the appropriate alteration project and the occupancy permit must be given to the Land Registry Office.

(Amended fourth paragraph: 15/2/2018-7099/4 art.) Registration of condominium ownership can be done according to the official deed prepared by the title deed officer or according to the following paragraphs.

(Added paragraph: 15/2/2018-7099/4 art.) Provided that the independent sections falling to the right holders have been determined, the condominium easement and condominium ownership establishment process regarding the building to be constructed based on the construction-in-return contract, assignment-in-return contract, or notary contract regarding the partition of independent sections made between the landowner and the contractor is performed by the relevant administration upon the request of the contractor. The architectural project and management plan prepared in electronic environment and approved by the relevant administration are taken as basis in the registration procedures in the land registry. Owner signature is not required 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.) The type change procedures of all structures for which an occupancy permit has been issued are made ex officio. The registration notification is issued by the cadastral directorate according to the occupancy permit uploaded to the Spatial Address Registration System by the administration authorized to issue the occupancy permit and sent to the cadastral directorate in the electronic environment, and the structure application project. Upon the registration notification sent to the land registry office, the type change is registered ex officio without requiring any other document. If the real estate whose type has been changed has condominium easement established, it is converted into condominium ownership ex officio based on the official deed regarding the registration of the condominium easement and the documents written in Article 12, without requiring any other document. These transactions are exempt from the revolving fund service fee.

In dissolution of partnership lawsuits on a real estate suitable to be the subject of condominium ownership, if one of the heirs or joint 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 revenue on common expenses or for any other purpose of common use shall be registered in the condominium land register by entering the "numbers of the independent units" that benefit from them into the owner section of these units. This fact shall be indicated in the declarations section of the independent units.”

Explanatory regulations have been introduced. In cases concerning the dissolution of partnership (partition) over a suitable immovable property that is not subject to condominium ownership, if one of the heirs or joint owners requests that the partition be carried out by establishing condominium ownership and allocating independent units, the judge of the Civil Court of Peace may decide to convert the ownership of the immovable property subject to the case into condominium ownership according to the documents regulated in Article 12 of the Condominium Law and to allocate the independent units to each stakeholder separately 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 or all co-owners of the main immovable property must file a request with the land registry office, together with the documents written below, regarding the conversion of that immovable property into condominium ownership:

a) (Amended: 15/2/2018-7099/5 art.) The architectural project prepared by the project-author architect and approved by the authorized public institutions and organizations with the signatures of the owner or all co-owners of the main immovable property, and the occupancy permit, clearly showing the exterior facades and interior layout of the structure or structures in the main immovable, the independent units, annexes, the measurements of 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 sequential numbers starting from one, as well as the construction area of the independent units, and sent to the land registry office in an electronic environment.

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 the presence of more than one structure, the characteristics of these structures, and signed by the owner or owners establishing the condominium ownership.

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

The request and documents have been regulated in detail.

Certain conditions are sought for the partition of the shared ownership subject to the case among stakeholders by converting it into condominium ownership. Primarily, the immovable property subject to shared ownership must be suitable for conversion into condominium ownership. It is not possible to order the conversion of an unsuitable immovable property into condominium ownership. Furthermore, one or more of the stakeholders must request partition through conversion into condominium ownership. It is not possible for the judge of the Civil Court of Peace to order the partition of a partnership by converting it into condominium ownership if it has not been requested. For partition by conversion into condominium ownership, the immovable property subject to the case must have more than one independent unit. Thus, at least one independent unit must be allocated to each stakeholder. In the absence of such a situation, partition by conversion into condominium ownership does not take place. The established jurisprudence and practices of the Court of Cassation are also in this direction. Additionally, in cases where stakeholders have clear consent, one independent unit is allocated to more than one stakeholder. If there is a significant difference between the financial values of the independent units, equalization is performed by returning the price.

It should be considered whether the immovable property subject to the case is suitable for conversion into condominium ownership, whether its independent units are evaluated separately, and whether, if differences exist, they are equalized along with their amounts. The judge of the Civil Court of Peace clarifies whether the immovable property subject to the case can be allocated according to the share status of the stakeholders by conducting an on-site inspection and expert examination. For this reason, expert reports to be prepared by a specialized committee are important in the course of the case. In the partition of the immovable property subject to the case by converting it into condominium ownership, the issue of equalization must be explained in detail through expert reports. Stakeholders and shares requesting partition by conversion into condominium ownership must submit the documents, which I have mentioned in detail above and which are regulated in Article 12 of the Condominium Law, to the file in the lawsuit for the dissolution of partnership. The stakeholder who initiates the dissolution of partnership lawsuit and makes a request by way of 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 litigation stage. In case of a dispute among the stakeholders regarding which stakeholder will be given which independent units, the actual usage of the stakeholders is taken into consideration.

The existence of consent is also sought for the distribution to be made according to the actual situation of the stakeholders. If there is no consent among the stakeholders, the allocation process is carried out by drawing lots. Following the decision of the Civil Court of Peace and the submission of the documents regulated in Article 12 of the Condominium Law to the relevant Land Registry Office, the transition to condominium ownership takes place.

Cases Where Dissolution of Partnership Cannot Be Requested

If the partition of the property subject to inheritance, which is subject to shared ownership, is requested, there are certain limits on the stakeholder's use of this right. While the stakeholder wants to exercise the right of partition, the property rights of other stakeholders must also be protected. Along with laws, contracts have an important place in protecting the boundaries between stakeholders. Examples of limitations arising from laws include Article 7 of the Condominium Law, Article 34 of the Gecekondu (Squatter) Law, and Article 15 of the Zoning Law.

Article 7 of the Condominium Law, titled "Dissolution of Partnership"; "The dissolution of partnership cannot be requested for immovable property 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 immovable property, and the dissolution of partnership can be requested for them."

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

a) Cannot be transferred or assigned.

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

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

d) Cannot be the subject of a request for the dissolution of partnership by way of 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 the mortgaged receivables of the Turkey Real Estate Credit Bank or other institutions providing housing loans are not subject to these records. (Added: 2/3/1988 - 3414/4. art.) Provided that the durations for construction in Article 27 are reserved, if all the borrowing costs are paid within the 20-year period, all encumbrances are lifted. The exemptions in Article 33 do not apply to transfers, assignments, and sales to be made in this way. From the price obtained from sales to be made due to mortgaged receivables arising from this law, after deducting debts related to this law, and after the money spent by the individual for additional structures and facilities that they have built by bearing the costs entirely, by obtaining permission from the municipality and the bank, provided that the plot is not contrary to this law, is given to the relevant person, the remaining amount is deposited into the fund mentioned in Article 14. The portion of the sale price given to the relevant person in accordance with this paragraph may also be seized due to their other debts.

Case Where Shared Property is Dedicated to a Continuous Purpose

Article 698 of the Turkish Civil Code, titled "Termination of Shared Ownership," stipulates: "Unless there is an obligation to maintain shared ownership due to a legal transaction or because the shared property is dedicated to a continuous purpose, each of the stakeholders 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 shared ownership in immovable properties are subject to official form and may be annotated in the land register. A request for partition cannot be made at an inappropriate time."

As can be understood from this legal article, if the thing under shared ownership is dedicated to a continuous purpose, partition can no longer be requested. For example, fences, walls, or roads separating two immovable properties. In addition to the Turkish Civil Code introducing the condition of continuity, there is also a condition of necessity. It is also required that the immovable property subject to shared ownership be of an inalienable nature among the stakeholders. It is clear that agreements made by stakeholders among themselves to dedicate an item to a continuous purpose will not be valid. There are also views in the doctrine that think otherwise regarding the need for genuine and independent dedication to a continuous purpose. In practice, it does not seem very possible to agree with the view that stakeholders cannot dedicate to a continuous purpose by making a contract after the rights granted to the owner by the property right and the decisions that the shares will take unanimously are made. However, it should always be thought according to the characteristics of the concrete case and the principle of honesty and equity regulated in Article 2 of the Turkish Civil Code.

PROCEDURAL RULES IN DISSOLUTION OF PARTNERSHIP LAWSUITS

Determination of the Competent Court in Dissolution of Partnership Lawsuits

In dissolution of partnership lawsuits, it is important in which court the lawsuit will be filed. Article 4, paragraph (b) of the Code of Civil Procedure, titled "Duty of Civil Courts of Peace," provides: "Lawsuits concerning the partition of movable and immovable property or rights and the dissolution of partnership." The competent court in dissolution of partnership lawsuits is determined within the framework of general provisions. According to Article 4 of the Code of Civil Procedure, civil courts of peace are the places where lawsuits concerning the partition of movable and immovable property or rights and the dissolution of partnership are heard, regardless of the value or amount of the subject of the lawsuit. The court designated as competent to hear the case is explicitly stated as civil courts of peace in the law article. Courts of first instance or other courts are not competent to hear dissolution of partnership lawsuits.

Determination of the Authorized Court in Dissolution of Partnership Lawsuits

In addition to specifying the competent court in dissolution of partnership lawsuits, it is also important to know the authorized court. The authorized court in a dissolution of partnership lawsuit is determined within the framework of general provisions.

Article 5 of the Code of Civil Procedure, titled "Authorization," is regulated as follows: "The authorization of the courts is subject to the provisions of this Code, unless otherwise provided for in other laws regarding authorization."

Article 6 of the Code of Civil Procedure, titled "General Authorized Court," is regulated as follows: "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."

Article 7 of the Code of Civil Procedure, titled "Authorization in Case of More Than One Defendant," is regulated as follows: "If there is more than one defendant, the lawsuit may 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 court. In cases where there are more than one defendant, if it is understood through evidence or signs 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 issues a decision of lack of jurisdiction."

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 court is authorized to hear the case. In practice, Article 12 of the Code of Civil Procedure, titled "Authorization in Lawsuits Arising from the Essence of Immovable Property," is most frequently applied in lawsuits concerning immovable properties. Namely; "In lawsuits concerning real rights over immovable property or lawsuits that may lead to a change in the ownership of real rights, as well as lawsuits concerning the possession or right of retention of immovable property, the court of the place where the immovable property is located has exclusive jurisdiction. (2) Lawsuits concerning easements are filed in the court of the place where the immovable property on which the easement is established is located. (3) If these lawsuits concern more than one immovable property, they may be filed in the place where one of the immovable properties is located, including for the others." is regulated.

In lawsuits concerning real rights over immovable property or lawsuits that may lead to a change in the ownership of real rights, as well as lawsuits concerning the possession or right of retention of immovable property, the court of the place where the immovable property is located has exclusive jurisdiction. If these lawsuits concern more than one immovable property, they may be filed in the place where one of the immovable properties is located, including for the others. In a dissolution of partnership lawsuit to be filed regarding immovable properties, the Civil Court of Peace in the place where the immovable property is located is considered exclusively authorized. An authorization contract contrary to this rule cannot be made. It should be known that if an authorization contract is made between the parties, it has no validity. If there is more than one immovable property subject to the case, the Civil Court of Peace in the place where one of the immovable properties is located is competent.

Plaintiff Status in Dissolution of Partnership Lawsuits

The role and obligations of the plaintiff in a dissolution of partnership lawsuit are very important. The plaintiff is the stakeholder or partner who wants the partition of the property related to the joint ownership subject to the lawsuit. The plaintiff may be one or more partners or stakeholders. If the stakeholder is under the age of 18, the legal guardian can file the dissolution of partnership lawsuit. If the stakeholder is restricted, it is possible for the guardian to file the dissolution of partnership lawsuit by obtaining permission from the guardianship authority. In some cases, other persons may also have the status of plaintiff in practice.

Article 648 of the Turkish Civil Code, titled "Participation of the Trustee in Partition," provides: "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 civil judge to appoint a trustee to participate in the partition on behalf of this heir." In addition to the right of heirs' creditors to file a dissolution of partnership lawsuit, creditors also have the right to make a request in other situations.

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 the share of their debtor seized and sold. In this regard, Article 121 of the Enforcement and Bankruptcy Law, titled "Other Modes of Liquidation. Shares in Joint Ownership," states: "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 made. The enforcement court, after inviting the interested parties whose places of residence are known and hearing those who come, can hold an open auction or appoint an officer for the sale or take other necessary measures." with the regulation, a creditor of a partner has the right to file a dissolution of partnership lawsuit with the authorization obtained from the enforcement court. This authorization must be obtained only and only from the judge of the enforcement court. This authorization cannot be given by the enforcement office, and a dissolution of partnership lawsuit cannot be filed directly. In practice, in lawsuits filed without complying with this procedure, instead of deciding to reject the case due to the lack of active standing, the creditor side is given time to obtain authorization from the Enforcement Court Judge.

Article 94 of the Enforcement and Bankruptcy Law, titled "Assets Possessed in Common," provides detailed regulations: "If a usufruct right or an undivided inheritance or a company or a share of goods possessed in common is seized, the enforcement office notifies the interested third parties whose places of residence are known of the situation. If the debtor's share in a specific immovable property at the end of liquidation is seized in this way, the enforcement officer sends a notification to the land registry office to process the seizure annotation into the immovable's record. (Added sentences: 17/7/2003-4949/25 art.) In joint-stock companies, if no share certificate or share certificate has been issued for the shares, the debtor's share in the company is seized by the enforcement office by notifying the company. It is mandatory to process this seizure in the company share book; however, the seizure is deemed to have been made on the date of notification to the company even if it has not been processed in the company share book. The seizure is notified to the Trade Registry to be registered by the enforcement office. In this case, the transfer of the seized shares is void to the extent that it violates the rights of the creditor. The sale of seized shares is subject to the procedure for the sale of movable property. For other movable properties, the enforcement office takes measures to prevent transfer to others. (Repealed third sentence: 17/7/2003-4949/25 art.) The registration of ownership or other real rights that the debtor has not rejected or acquired for another reason and has not yet registered in the land or ship registry on behalf of the debtor can be requested by the creditor. Upon this request, the enforcement office notifies the land 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 property possessed by the debtor is seized, the enforcement office takes measures to prevent the transfer of possession to others and gives the creditor authorization to file a lawsuit for the registration of the immovable property in the name of the debtor within one month. With the court's registration decision, the immovable property 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 undergo the necessary inspection procedures to receive the retirement or orphan pension they are entitled to receive or are receiving. The legal expenses that the creditor will incur for this reason are collected by the office from the debtor without the need for further follow-up and judgment." As can be understood when examining the text of the article, it is understood that an undivided inheritance share can be seized. A debtor who is included in the inheritance partnership, which is a type of joint ownership, and the creditors of an heir have the right to request seizure on their share. When the debtor's inheritance share is seized, the Enforcement and Bankruptcy Law's Article 121, titled "Other Modes of Liquidation. Shares in Joint Ownership," stipulates: "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 made." If it is not asked to the enforcement court by the enforcement office, if the inheritance share is sold by open auction, the provisions for the annulment of the tender will arise as there is a violation of the law articles.

Since there is no situation of sharing or disposing of a share in joint ownership within the inheritance partnership, the subject of the foreclosure consists of the portion that will fall to that share in the event that the joint ownership is terminated. With the conversion of joint ownership into common ownership, the portion falling to the share is determined. The creditor must file a lawsuit regarding the property in the amount that will satisfy their receivable. The lawsuit must be rejected for the portion of the receivable that is exceeded. For the creditor to use this path, they must first have previously carried out an enforcement proceeding against the debtor. If the debtor requests authority by failing to carry out the proceedings, the court gives the debtor a period of time to carry out the proceedings. It must be importantly stated that Article 121 of the Enforcement and Bankruptcy Law has an area of application for the creditors of the heirs. The creditor of the decedent has the right to collect their receivable from the estate. If the debtor dies during the enforcement proceedings, the creditor has the right to continue the proceedings from where they left off, limited to the assets in the debtor's estate. In this case, we encounter a situation where there is a compulsory joinder of parties among the heirs of the deceased debtor, with the heirs taking the place of their deceased debtor and becoming compulsory joinder 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 the usufruct right is not a property right. Besides this, a person who purchases a share with a sales promise 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. Similarly, because the ownership has not been transferred to them, the right to file a lawsuit for the dissolution of the partnership has not arisen. A person who acquires a real estate through a lifelong support agreement has the right to file a lawsuit for the dissolution of the partnership when they have the status of owner in the land registry. The fact that the heirs have not transferred the inheritance left by the decedent to their own names does not prejudice their right to file a lawsuit for the dissolution of the partnership. As a rule, the right of ownership is not subject to a statute of limitations. However, a person who is disinherited, refuses 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. Yet, it must be importantly stated 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 not have the right to file a lawsuit for the dissolution of the partnership as they cannot benefit from the estate of the root ancestor.

A lawsuit for the dissolution of the partnership is a dual-sided lawsuit. This situation means that in the lawsuit, the defendants are at the same time plaintiffs, and the plaintiffs are at the same time defendants. Due to this feature of the lawsuit for the dissolution of the partnership, if the plaintiff waives their lawsuit and the defendants wish to continue the case, the lawsuit for the dissolution of the partnership is not rejected due to the waiver and continues.

Defendant Status in Lawsuits for the Dissolution of the Partnership

The role of the defendant or defendants in a lawsuit for the dissolution of the partnership is quite important. A shareholder or partner who does not agree to the sharing of the common 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 at all shareholders. The defendant shareholders have a compulsory joinder. The compulsory joinder originates from substantive law, and all of them will be affected by the outcome 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 shareholders. The formation of the parties is ensured by requesting the land registry record of the real estate subject to the lawsuit from the relevant Land Registry Directorate. Heirs of shareholders who have died during the lawsuit must also be included in the lawsuit by presenting 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 to the estate, the representative must also be shown as a party in the lawsuit for the dissolution of the partnership. For those who pass away without heirs, the state treasury has the status of legal heir. In such special cases, individuals or institutions also hold the status of defendant. In a lawsuit for the dissolution of the partnership, the lawsuit must be directed at the treasury. If there is a situation of disappearance (gaiplik) of one of the shareholders in the lawsuit for the dissolution of the partnership, the Law on the Appointment of Trustees for Property Officers will be applied. According to this, in order to protect the rights and interests of the disappeared shareholder, the highest property officer of that place will be appointed as a trustee and will have 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 an establishment of usufruct rights on one of the shares on the real estate, the usufruct owner will also have 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 case may also be affected. It is possible to participate in a lawsuit for the dissolution of the partnership as an intervening party.

The Issue of Prejudicial Question in Lawsuits for the Dissolution of the 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 gives a period 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 according to the subject of the dispute. If the lawsuit is not filed within the period given by the Civil Court of Peace, the lawsuit for the dissolution of the partnership is rejected due to procedural rules. In this case, what is intended and the main point protected in the lawsuit for the dissolution of the partnership is the question of who the property right belongs to and the fact that it cannot be determined 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 made a prejudicial question.

In practice, the most frequently encountered lawsuit for the determination of the ownership of the improvement (muhdesat) involves claims of ownership regarding the trees on the real estate. The term "muhdesat," in its dictionary sense, is used in real estate law to refer to structures such as buildings, facilities, etc., located on a land, as well as planted plants such as trees and vineyards. The lawsuit for the determination of the ownership of the improvement is a type of real estate lawsuit filed against all title deed owners who are shareholders in the real estate where the improvement is located, excluding those who clearly accept that the improvement was created by the plaintiff during the trial and expropriation process. With the lawsuit for the determination of the ownership of the improvement, the plaintiff determines that the improvement was created by them or that the improvement belongs to them by court decision. It must be importantly stated that; if there is no lawsuit for the dissolution of the partnership or expropriation process filed regarding the improvement on the real estate subject to the lawsuit, a lawsuit for the determination of the ownership of the improvement cannot be filed. For example, this lawsuit is filed regarding hazelnut trees located in the army. A property right arises for all trees and plants that have commercial and economic returns.

There are differences in the case where the improvement belongs to one or more of the shareholders or a third person. If it belongs to one or more of the shareholders and there is an annotation in the land registry regarding the existence of the improvement, and there is no dispute between the shareholder or shareholders, the sale price is determined as a result of the percentage calculation 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 the Dissolution of the Partnership

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

In Article 1 of the Law on Mediation in Legal Disputes, titled Purpose and Scope; “The purpose of this Law is to regulate the procedures and principles to be applied in the resolution of legal disputes through mediation. (2) This Law is applied in the resolution of private law disputes arising from works or transactions that the parties can freely dispose of, including those involving a foreign element. 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 if they carry a foreign element, mediation will only be applied in the resolution of private law disputes arising from works or transactions that the parties can freely dispose of. As is known, in lawsuits for the dissolution of the partnership, the goal is the realization of 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 for the mediation process in lawsuits for the dissolution of the partnership, it is optional.

In Article 2 of the Law on Mediation in Legal Disputes, titled Definitions; “Mediator: A natural person who conducts the mediation activity and is registered in the registry of mediators kept by the Ministry,

Mediation: A dispute resolution method that brings the parties together for the purpose of discussing and negotiating by applying systematic techniques, establishing a communication process between them to ensure that they understand each other and thus produce their own solutions, and can also offer solutions in case it is revealed that the parties cannot produce solutions, conducted with the participation of a neutral and independent third person who has received expert training and is carried out voluntarily,” defines it.

It is possible to apply for mediation regarding a lawsuit for the dissolution of the partnership. The person or persons appointed as mediator must be independent from the parties to the dispute. Mediators should not exhibit biased and dogmatic behaviors. At the same time, it is expected that mediators have reached the ability to perceive events from a multi-faceted perspective, in addition to being objective and impartial. Applying for the mediation process will also be very beneficial for the parties. Since the litigation fees and costs are compared with the low price of the property subject to the lawsuit in a lawsuit for the dissolution of the partnership, the 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 common ownership is in question, the situation differs. At this point, optional mediation companionship is formed among the shareholders. In this case, each shareholder has the right to continue the mediation activity themselves or with other shareholders. The most important point to be careful about is that each shareholder should apply to the mediation process regarding their own share. As a result, for the dissolution of the partnership, it is required that all shareholders are aware of the mediation process and show consent in accordance with their shares. The judge of the Civil Court of Peace prepares a form containing information and documents regarding mediation because the lawsuit for the dissolution of the partnership is suitable for mediation and sends it to the parties to the lawsuit. The points that should be especially included in the mediation application form are the benefits of the mediation activity, how they can reach the mediator, and what the information regarding the mediation processes are. During the stage of the lawsuit for the dissolution of the partnership, the parties have the right to agree and apply to a mediator. They must notify the Civil Court of Peace that they have decided to apply for mediation by filling out the mediation application form. It includes information that the lawsuit for the dissolution of the partnership will be postponed for a maximum of three months by the Civil Court of Peace and in case of an agreement, a settlement report will be drawn up and this report has the capacity of enforceability. If an agreement has been reached between the parties as a result of the mediation application, this agreement is binding. The settlement text is approved by the Civil Court of Peace and accepted as a document with the status of a court judgment.

Decisions That Can Be Given in Lawsuits for the Dissolution of the 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, the decisions at the trial stage can vary. An exploration is conducted by expert witnesses in their field by the Civil Court of Peace at the trial stage to determine the financial value of the real estate subject to the lawsuit for the dissolution of the partnership. As a result of this exploration, it is also investigated whether the real estate subject to the lawsuit is in a divisible structure. In lawsuits for the dissolution of the partnership, the essential thing for the real estate subject to the lawsuit is the financial value, and it is learned by drawing up a valuation report when moving to the sale stage. There are similar practices for movables in the lawsuit for the dissolution of the partnership. However, there are no valuation processes at the sale stage of movables. In the application stage, the value of the movable is determined by expert witnesses at the trial and sale stages. If the property with multiple ownership on it is divisible as a result of the exploration, at this point, the judge of the Civil Court of Peace decides to "accept the lawsuit and divide it in kind." If it is not possible to divide the real estate in kind, they decide to "accept the lawsuit and divide it by sale."

Ordinary and Extraordinary Legal Remedies in Lawsuits for the Dissolution of the Partnership

In lawsuits for the dissolution of the partnership, ordinary legal remedies are carried out in two ways: the appeal (istinaf) remedy and the cassation (temyiz) remedy. First of all, I would like to talk to you about the appeal remedy.

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

According to this article, upon request, it is necessary to apply for the appeal remedy within two weeks regarding the lawsuit for the dissolution of the partnership.

Another ordinary legal remedy in lawsuits for the dissolution of the partnership is the cassation remedy. In Article 362 of the Code of Civil Procedure No. 6100, titled Decisions That Cannot Be Cassated; “The following decisions of the regional courts of justice cannot be subject to the cassation remedy:

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

b) Except for receivable lawsuits arising from rental relationships and which can be cassated in terms of amount or value, and other lawsuits arising from rental relationships where the three-month rental amount is above the cassation limit, lawsuits shown in Article 4 (excluding lawsuits arising from the Condominium Law No. 634 dated 23/6/1965 and concerning the substance of the real estate) and decisions regarding lawsuits stated in special laws to fall within the duty of the civil court of peace. (4)(6)

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

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

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

f) Decisions 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, in case a part of the receivable has been sued, the finality limit of forty thousand Turkish Liras is determined according to the whole receivable. In case the whole receivable has been sued, the party whose part of the main claim not accepted in the decision does not exceed forty thousand Turkish Liras does not have the right to cassation. However, if the other party applies for the cassation remedy, the other party may also cassate the decision with the response petition they will prepare. (3)” is regulated.

As clearly seen in the law article, decisions regarding lawsuits that fall within the jurisdiction of the Civil Court of Peace cannot be the subject of a cassation application. It is clearly regulated in the Code of Civil Procedure that the court with jurisdiction is the Civil Courts of Peace. For this reason, there is no place to apply other than the Regional Court of Justice in lawsuits for the dissolution of the partnership. The cassation 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: cassation in the interest of the law and retrial (renewal).

In Article 363 of the Code of Civil Procedure No. 6100, titled Cassation in the Interest of the Law; “Against the decisions that the first-instance courts have given as final and the decisions that have become final without going through an appellate review, and against the decisions that the civil chambers of the regional courts of justice have given as final in the capacity of a first-instance court and those they have given in this capacity and that have become final without going through a cassation review, the Ministry of Justice or the Chief Public Prosecutor's Office of the Court of Cassation applies for cassation in the interest of the law by claiming that it is contrary to the current law. (2) If the cassation request is found appropriate by the Court of Cassation, the decision is overturned in the interest 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 published in the Official Gazette by the Ministry.” is regulated.

Cassation in the interest of the law is an extraordinary legal remedy and is a special area. After the final decisions of the first-instance court and the regional court of justice, an application for cassation in the interest of the law is made by the Ministry of Justice or the Chief Public Prosecutor's Office of the Court of Cassation against decisions that have become final after passing through appellate and cassation reviews, because they are contrary to the current rules of law. The main purpose of applying for this legal remedy is to overturn the final decision that was given contrary to the current rules of law and reason, and to publish it in the Official Gazette, and in this way, to prevent 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 judgment). 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 definitively or have become final.” This finalization may occur either by resorting to ordinary legal remedies or without doing so. A retrial is an exceptional remedy. For this reason, it is sought to vacate judgments that have become final as a result of certain errors and deficiencies. It is not possible to apply for the retrial of judgments that are not final in a substantive sense. Furthermore, it is not possible to apply for a retrial 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 regarding the rejection of a request for the cancellation of a tender rendered by enforcement courts.

Article 378 of the Code of Civil Procedure No. 6100, titled "The Court to Review and Security," stipulates: “The petition containing the request for retrial is examined by the court that rendered the judgment. (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 losses and damages of the other party.”

In a lawsuit for the cancellation of a tender that may arise depending on the situation and conditions as a result of a dissolution of partnership lawsuit, if the judge of the civil court of peace decides to reject the case, an application for retrial may be made. The request for retrial is examined by the court that rendered the judgment.

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 Expense Advance," stipulates: “The plaintiff must deposit the litigation fees and the amount determined in the expense advance tariff issued by the Ministry of Justice each year into the court treasury when filing the lawsuit. (2) If it is understood during the lawsuit that the advance is insufficient, the court shall grant the plaintiff a peremptory 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 to be determined in the expense advance tariff determined by the Ministry of Justice each year into the court treasury when filing the lawsuit. If it is understood during the litigation stage that the advance is insufficient, a peremptory 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 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, primarily the application fee and the advance fee are deposited. The amounts of the fees are specified in the tariff published in the Official Gazette each year.

The regulation regarding litigation costs appears 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, judgment, and writ 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 the preparation of protests, notices, warnings, and powers of attorney.

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 allowances, travel, and accommodation expenses of the parties for the days they are present in lawsuits not followed by an attorney; daily allowances, travel, and accommodation expenses to be appreciated for a party who is called to be heard, interrogated, or to take an oath by the court personally, even if they have an attorney.

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

h) Other expenses incurred during the litigation.”

In the event that the plaintiff waives the lawsuit and the defendants do not wish to continue the lawsuit, the plaintiff is sentenced to cover the litigation costs.

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

In a dissolution of partnership lawsuit, litigation costs are collected from the sale price. Due to the nature of the lawsuit, litigation costs are collected from the sale price, individually and separately from each stakeholder in proportion to their shares. The money obtained after the sale is distributed to each stakeholder in proportion to their share.

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 Minimum Fee Tariff.” According to the first section of the second part of the Attorney's Minimum 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 over the sale price. In dissolution of partnership lawsuits, if both the plaintiff and the defendant 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 have won. If the defendant side 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 that they received legal assistance throughout the litigation process, even if it did not result in the way they requested. If the dissolution of partnership lawsuit is accepted and there is more than one defendant on the defendant side, and each defendant has separate attorneys, a separate attorney's fee is ruled in favor of each defendant's attorney. It should be importantly stated that in the case of a single attorney for more than one defendant, attorney's fees are not ruled for each client.

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

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

Unlike other types of lawsuits, in dissolution of partnership lawsuits, in case of acceptance of the lawsuit, an opposing attorney's fee is ruled in favor of the defendant side. 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 other party according to the acceptance or rejection 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, sale transactions are carried out within the framework of the relevant provisions of the Enforcement and Bankruptcy Law. Articles 106-137 of the Enforcement and Bankruptcy Law find a detailed area of regulation regarding the sale.

Primarily, the decision rendered by the judge of the Civil Court of Peace regarding the dissolution of partnership is carried out by the Sale Office or the Enforcement Office. After the decision rendered by the judge of the Civil Court of Peace in a dissolution of partnership lawsuit becomes final, if the plaintiff requests, the file is handed over to the relevant Sale Office together with all attachments and documents. After the file is received by the sale office, sale transactions are started. The sale file is registered by the sale office by assigning a sale number. The sale office arranges the valuation by preparing the preparations for the auction of the movable or immovable property decided to be sold, goes to the discovery, and performs the sale by ensuring that the auction is held. Finally, after the sale takes place, it completes the tender and carries out the distribution of the money resulting from the sale to the stakeholders in proportion to their shares.

In sale transactions, it is necessary to make an examination in two parts: the sale of movables and the sale of immovables.

Firstly, in the sale of movables; after the file is handed over to the sale office, Article 112 of the Enforcement and Bankruptcy Law, titled "Sale of Movables," stipulates: “Movable goods are sold within two months at the latest from the request for sale. (1) Unmatured crops cannot be sold without the consent of the debtor.”

Article 114 of the Enforcement and Bankruptcy Law, titled "Preparation Measures for Auction," stipulates: “The sale is conducted by open auction. The day and time interval for the first and second auctions are announced at least fifteen days before the start date of the auction. The advertisement to be made on the electronic sale portal is kept open for access 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 advertisement and whether it will be done via a 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 that the advertisement be made in a newspaper published nationwide, this advertisement is made in one of the newspapers with a circulation of over fifty thousand (50,000) on the date of the sale request and distributed nationwide. (1) In advertisements to be made with a newspaper, the sale specifications are not included as an attachment, and it is considered sufficient to write the electronic sale portal where the type, nature, important qualities, estimated value, location of the object to be sold, and the day and time interval for the first and second auctions, and information regarding the auction are located. Except for the advertisements that the enforcement office is required to make, the parties can announce the advertisement text on the electronic sale portal through the means they wish, at their own expense. However, this advertisement of a special nature does not affect the official transaction. If there is a difference between the announced texts, the text announced on the electronic sale portal is taken as the basis. However, errors in the text announced in the newspaper or on the electronic sale portal are corrected by announcement only on the electronic sale portal without changing the tender date. This correction advertisement is not notified separately to the concerned parties. The advertisement to be made on the electronic sale portal includes the following points:

1. The type, nature, important qualities, estimated value, location of the object to be sold, and its visuals if any, and other information in the auction specifications.

2. To participate in the auction, it is mandatory to deposit the security in an amount covering ten percent of the value of the seized item into the bank account of the enforcement office conducting the sale, and if 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. If the security to be shown is a letter of guarantee, those who will participate in the auction must submit a final and indefinite bank letter of guarantee in an amount covering ten percent of the value of the seized item subject to sale to the enforcement office conducting the sale by the end of working hours on the business day before the end of the auction period at the latest.

4. Those who will participate in the auction through a representative must apply to the enforcement office conducting the sale by the end of working hours on the business day before the end of the auction period at the latest.

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

6. If the creditor who requests the sale and wants to participate in the auction, and the stakeholder who wants to participate in the auction in the dissolution of partnership through sale, apply to the enforcement office conducting the sale by the end of working hours on the business day before the end of the auction period at the latest, security will not be taken from them for the amount that the receivable or partnership share covers.

7. If the conditions are met, the property will be tendered to the person who offers the highest bid.

8. The bids to be given on the electronic sale portal must exceed the amount that is higher between fifty percent of the estimated value of the seized property and the total of the debts secured by that property and the debts that have priority over the debt of the person requesting the sale, and in addition to this amount, the conversion to money and distribution expenses.

9. If the tender buyer gives the highest bid but does not deposit the tender price within the period, the security taken will not be returned but will be paid to the right holders in deduction of the receivables, 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 open auction.

11. The tender buyer must pay the entire sale price to the enforcement office account within seven days at the latest from the date the minutes regarding the realization of the tender are announced on the electronic sale portal.

12. Those who participate in the sale shall be deemed to have seen the specifications with all their attachments and accepted their contents.

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

As specified in detail in the relevant law article, as a rule, the sale is made by open auction. However, in some cases, it is also accepted that the sale can be made by bargaining method.

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

1 – If all stakeholders want it,

2 – If the determined price of that day is offered for valuable papers or other goods whose price is on the stock exchange 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 cases shown in the second paragraph of Article 113 are present, 5 – (Amended: 17/7/2003-4949/31 art.) If the estimated value of the seized property does not exceed one billion liras.”

Although the rule is to make the sale by open auction, there may be cases where a private sale decision is taken. For this, the approval of all shareholders must be obtained. If even one person from the stakeholders does not show consent regarding private sale, the sale is made by open auction method.

In the dissolution of partnership lawsuit, preparations for the 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 open auction. The day and time interval for the first and second auctions are announced at least fifteen days before the start date of the auction. The advertisement to be made on the electronic sale portal is kept open for access 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 advertisement and whether it will be done via a 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 that the advertisement be made in a newspaper published nationwide, this advertisement is made in one of the newspapers with a circulation of over fifty thousand (50,000) on the date of the sale request and distributed nationwide. (1) In advertisements to be made with a newspaper, the sale specifications are not included as an attachment, and it is considered sufficient to write the electronic sale portal where the type, nature, important qualities, estimated value, location of the object to be sold, and the day and time interval for the first and second auctions, and information regarding the auction are located. Except for the advertisements that the enforcement office is required to make, the parties can announce the advertisement text on the electronic sale portal through the means they wish, at their own expense. However, this advertisement of a special nature does not affect the official transaction. If there is a difference between the announced texts, the text announced on the electronic sale portal is taken as the basis. However, errors in the text announced in the newspaper or on the electronic sale portal are corrected by announcement only on the electronic sale portal without changing the tender date. This correction advertisement is not notified separately to the concerned parties. The advertisement to be made on the electronic sale portal includes the following points:

1. The type, nature, important qualities, estimated value, location of the object to be sold, and its visuals if any, and other information in the auction specifications.

2. To participate in the auction, it is mandatory to deposit the security in an amount covering ten percent of the value of the seized item into the bank account of the enforcement office conducting the sale, and if 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. If the security to be shown is a letter of guarantee, those who will participate in the auction must submit a final and indefinite bank letter of guarantee in an amount covering ten percent of the value of the seized item subject to sale to the enforcement office conducting the sale by the end of working hours on the business day before the end of the auction period at the latest.

4. Those who will participate in the auction through a representative must apply to the enforcement office conducting the sale by the end of working hours on the business day before the end of the auction period at the latest.

5. In cases where sale with shares is possible, joint buyers who want to purchase the property subject to open auction with certain shares must apply to the enforcement office conducting the sale by the end of working 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 the shareholder wishing to participate in the auction for the liquidation of the partnership through sale, no security deposit shall be required from them up to the amount covered by their receivable or partnership share, provided that they apply to the enforcement office conducting the sale no later than the end of business on the business 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 placed on the electronic sales portal must exceed the amount which is higher between fifty percent of the appraised value of the seized property and the total of the debts secured by said property that have priority over the claim of the party requesting the sale, and furthermore, must cover the costs of conversion into cash and distribution in addition to this amount.

9. That if the auction buyer places the highest bid but fails to deposit the auction price within the prescribed period, the security deposit taken shall not be refunded and shall be paid to the entitled parties against their claims, primarily to be deducted from the sales expenses.

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

11. That the auction buyer must pay the full sale price into the enforcement office's account within seven days at the latest from the date the report confirming the realization of the auction is announced on the electronic sales portal.

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

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

Preparatory procedures for the sale of movables consist of the preparation of the auction announcement and the auction specification.

In accordance with the Enforcement and Bankruptcy Law, the place, day, and time of the first and second auctions are announced in advance in the auction announcement. The form of the announcement, the manner in which the auction will be conducted, the location, day, and time are regulated in detail by the sales office to an extent that takes into account the interests of the relevant parties. In the event that the sales office decides to have the auction announcement published in a newspaper published nationwide, this announcement must be in one of the newspapers that had a circulation of more than fifty thousand on the date of the sales request and is distributed nationwide. There is no obligation to notify shareholders in the sales announcement for the sale of movable property. However, if the sales office has decided to issue a notification, then a proper notification of the auction must be issued to all shareholders. If this procedure is not fulfilled, there is a possibility that a lawsuit for the annulment of the auction may be filed.

In addition to the preparations for the auction announcement, another matter that needs to be prepared by the sales office is the auction specification. The auction specification states the characteristics of the movable property subject to the sale, which has been decided upon. The sales specification is not shown in detail in auction announcements placed in newspapers. It is stated that the type, nature, important characteristics, appraised value, location of the movable property to be sold, the day and time of the second auction, where and how information regarding the sales specification can be obtained, and that a copy of the specification will be sent upon request if costs are covered, are mentioned.

The auction is conducted by the sales office through the submission of bids by parties and third parties in an electronic environment, starting ten days before the first auction date and continuing until the end of the day preceding the day the auction is to be completed. The second auction is determined to be held at least ten days after the first auction, with the electronic bidding period starting on the fifth day after the first auction and ending 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 estimated during the valuation of the seized property. Additionally, it should be importantly noted that before submitting a bid, a security deposit equal to 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 regulated as follows: "The first and second auctions are initiated by the enforcement officer at the day and time specified in the announcement, starting at 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 the amount which is higher between fifty percent of the appraised value of the seized property and the total of the debts secured by said property that have priority over the claim of the party requesting the sale, and furthermore, must cover the costs of conversion into cash and distribution in addition to this amount. On the day and time the auction ends, if the conditions are met, the property is deemed auctioned to the highest bidder and the ownership of the property passes to the auction buyer. If the auction buyer places the highest bid but fails to deposit the auction price within the prescribed period, the security deposit taken is not refunded and is paid to the entitled parties against their claims, primarily to be deducted from the sales expenses. On the first business day after the auction ends, 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 announcement of the report, and the reason why the auction could not be held if the conditions were not met. A sales 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. In cases where the minimum auction price is not bid, the highest bidder fails to deposit the auction price, or the debt is paid before the end of the bidding period, the enforcement officer determines by report that the auction could not be held or was canceled. In cases where the minimum auction price is not bid or the highest bidder fails to deposit the auction price, the second auction begins on the previously announced date under the conditions of the first auction. If no buyer appears at the auction or the conditions written in this article are not met, the creditor may request a sale date within the remaining sales request period from the previous sales request. The sales request period is suspended upon the sales request, and this suspended period starts to run again from where it left off from the date of the report regarding the auction not being held or being canceled. On the first business day after the auction ends, if the enforcement officer determines from the sales portal records that bids could not be placed in the last ten minutes of the auction due to technical reasons originating from the electronic sales portal, they shall decide to extend the auction period by one day; the decision shows the start and end dates and times of the auction and announces all these matters on the sales portal immediately. 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 at the place, day, and time specified in the announcement, based on the highest bid submitted electronically. The property, for which the Civil Court of Peace has decided to sell, is auctioned off at the sales office to the auction buyer who submits the highest bid in the electronic environment by calling out the price three times. In the absence of a buyer in the first auction, preparations for the second auction are made by the sales office. If there are no buyers in the second auction, the sales request lapses in accordance with Article 115 of the Enforcement and Bankruptcy Law.

Article 117 of the Enforcement and Bankruptcy Law, titled "Gold and Silver Items," is regulated as follows: "Gold and silver items cannot be sold for a price lower than their value as raw metal."

Certain results emerge as a result of the first and second auctions conducted by the sales office. Article 118 of the Enforcement and Bankruptcy Law, titled "Payment of the Auction Price and Delivery of the Property," is regulated as follows: "The auction buyer is obliged to pay the sale price in cash within seven days from the announcement 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 official registry in the name of the buyer until the auction is finalized."

If there is a situation where payment is not made following the auction, the sales officer has the right to directly annul the auction. The Enforcement and Bankruptcy Law article also explicitly regulates that if the auction price is not paid after a bid is made, the defaulting buyer and guarantors are responsible for the difference between the bid price and the final price. Primarily, if this difference is sufficient, it is met from the deposited security amount.

In the sale of immovable property; after the file is referred to the sales office, Article 123 of the Enforcement and Bankruptcy Law, titled "Sale Period," is regulated as follows: "Immovables are sold by the enforcement office by auction within three months at the latest from the sales request."

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

In the procedure for preparation for the auction in the sale of immovable property, unlike the sale of movables, there is the existence of a valuation and a list of obligations regulated in the Enforcement and Bankruptcy Law.

Article 126 of the Enforcement and Bankruptcy Law, titled "Auction Preparation Measures," is regulated as follows: "The provision of Article 114 also applies to the auction preparation measures for immovable property. In the sales announcement to be made on the electronic sales portal; in addition to the matters specified in Article 114, it is stated that mortgage-holding creditors and other interested parties, if any, must notify the enforcement office of their rights on the immovable property, especially their claims regarding interest and expenses, within fifteen days with supporting documents; otherwise, unless their rights are established by the land registry, they will be excluded from the sharing of the sale price, and these matters shall also apply to 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. The announcement prepared by the sales office specifies the type, nature, important characteristics, valuation, location of the item to be sold, the place, day, and time of the first and second auctions, and that those participating in the auction must submit a deposit or a letter of guarantee obtained from a national bank at the rate of twenty percent of the estimated value of the immovable property put up for sale.

Rights and obligations related to immovables are regulated in the auction specification prepared by the sales office regarding the sale of the immovable property.

Article 124 of the Enforcement and Bankruptcy Law, titled "Specification," is regulated as follows: "The enforcement office determines the auction conditions in the most convenient manner according to the customs of the place where the immovables are located."

By preparing the specification, the sales office displays all matters concerning the immovable property. During the preparation of this specification, the sales office has the right to request documents by writing a writ to the relevant land registry offices in order to obtain the information about the immovable property accurately. In the auction specification, it is specified in detail which expenses belong to the customer, and that in the event that it is sold together with easement rights, immovable obligations, mortgages, and mortgage-backed debt instruments, annuity instruments, the debtor's personal debts secured by this immovable property will also transfer to the buyer. The specification prepared by the sales office is exhibited by being hung in a place where everyone can see it at least ten days before the auction.

Another list that the sales office must prepare with importance in the conduct of an immovable sale is the list of obligations. Article 128 of the Enforcement and Bankruptcy Law, titled "List of Obligations," is regulated as follows: "Before starting the sale, the enforcement officer makes a list of all obligations registered in the land registry on the immovable property or based on an official deed, and notifies this list to the attachers and the debtor, giving them three days to submit their objections. The provisions of articles 96 and 97 also apply here. (Amended: 9/11/1988-3494/19 article) The enforcement office has the immovable property appraised; in the appraisal of the immovable property, the effect of the obligations on the immovable property on the value is also taken into account. (Added sentence: 17/7/2003-4949/33 article) In the event that obligations affecting the previously appraised value of the immovable property emerge, the enforcement office has the value of the immovable property re-appraised as the basis for the sale. The report regarding the valuation is notified to the debtor, creditors who have placed an attachment, and other mortgage creditors, based on their current addresses in the land registry, except for cases where they have been notified otherwise, in the enforcement file where the notification was made. (Repealed last sentence: 17/7/2003-4949/103 article) (Added paragraph: 21/2/2007-5582/2 article) In the follow-up of claims arising from housing finance defined in the first paragraph of Article 38/A of the Capital Markets Law No. 2499 and claims of the Housing Development Administration secured by a pledge, the enforcement office has the valuation for the immovable property requested for sale carried out by persons or institutions authorized in accordance with subparagraph (r) of the first paragraph of Article 22 of the same Law. (Added paragraph: 17/7/2003-4949/33 article) If there is property in the nature of accessories in the immovable property put up for sale, the enforcement office has the value of these properties appraised separately. Before the sale, relevant institutions are asked about 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 immovable property in accordance with the provisions of Article 129, taking into account public claims arising from the substance of the property such as taxes, duties, and fees on them. (Added paragraph: 28/2/2018-7101/1 article) Goods and rights that exhibit commercial and economic integrity or that are understood to generate higher income if sold as a whole are converted into cash as a whole."

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

Valuation procedures of the immovable property are carried out by the sales office. Discovery procedures performed by the judge of the Civil Court of Peace during the liquidation of partnership lawsuit phase relate to determining the value of the immovable property as well as whether it is possible to divide it in kind. For this reason, a discovery is made by the sales officer to carry out valuation procedures. During the discovery of the immovable property, it is possible for a delegation consisting of agricultural, mechanical, or civil engineers to be present alongside a technical expert who is an expert in the field. After the valuation procedures are carried out by the experts, it is notified to the parties.

Starting from the notification of the valuation report to the parties, the shareholders have the right to apply to the Civil Court of Peace with complaints regarding the valuation within 7 days. In practice, this lawsuit is called a "Lawsuit Objecting to Valuation." In a Lawsuit Objecting to Valuation, a re-discovery examination is conducted based on the simple trial procedure. The decision to be rendered by the Civil Court of Peace after the re-discovery and the preparation of expert reports is of a final nature. If the valuation is finalized after there is no objection, a re-valuation request is not made for two years. This situation is important for the sake of procedural economy. However, the way to request a re-valuation without regard to the year limit due to the new order created by natural disasters or extraordinary changes in the zoning status has been opened by the Enforcement and Bankruptcy Law article.

The same procedures are valid for the auction of immovables as in the auction of movables. As regulated in detail in Article 126 of the Enforcement and Bankruptcy Law; the auction is initiated by the submission of bids in the electronic environment. Electronic bidding starts twenty days before the first auction date and ends on the day preceding the day the auction will be completed. In the second auction; the electronic bidding state starts on the fifth day after the first auction and lasts until the end of the day preceding the day the second auction, which will be determined for at least twenty days later, will be completed. Bids to be submitted electronically must not be less than fifty percent of the estimated value of the immovable property to be sold and must be possible by showing a security deposit at the rate of twenty percent of the estimated value of the property to be sold before bidding.

Article 129 of the Enforcement and Bankruptcy Law, titled "Auction," is regulated as follows: "The provision of Article 115 also applies to the auction of immovable property." The first and second auctions are initiated by the sales officer at the place, day, and time specified in the announcement, with the highest bid submitted electronically. The sale of the immovable property by the Sales Office is auctioned to the highest bid submitted electronically by calling out three times. The auction price must exceed fifty percent of the estimated value of the immovable property and the costs of conversion into cash and distribution of funds. As in the sale of movables, if no buyer appears or the requested written amount is not reached in the first auction, the sale is postponed by the sales officer. As in the sale of movables, in the sale of immovables as well, if no buyer appears in the second auction or the conditions are not met, the sales request lapses by the sales office. In the process thereafter, it is necessary to make a sales request to the Sales Office again.

There are some consequences of the auction in the sale of immovable property. Namely; Article 130 of the Enforcement and Bankruptcy Law, titled "Payment of the Auction Price," is regulated as follows: "The auction buyer is obliged to pay the sale price in cash within seven days from the announcement 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 immovable property is kept by the sales office, with the damage and expenses belonging to the buyer.

Article 131 of the Enforcement and Bankruptcy Law, titled "Management of Immovable Property During the Payment Period," is regulated as follows: "If a period has been granted for the payment of the sale price, until the money is paid, the immovable property is managed by the enforcement office, with the damage and expenses belonging to the customer. 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 additional security to be shown to secure 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 demand the provision of additional security to ensure payment of the sale price.

Article 135 of the Enforcement and Bankruptcy Law, titled "Notification to Land Registry for Registration and Eviction," states: "After the immovable property has been auctioned to the buyer and the price has been collected, a writ is written to the land registry in accordance with the period specified in Article (134) for registration 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 a contract documented by an official document dated prior to the seizure, an eviction order is served to the debtor or the occupant for eviction within fifteen days. If it is not vacated within this period, they are forcibly removed, and the immovable is delivered to the buyer. (Added sentence: 24/11/2021-7343/28 art.) A person who purchases the immovable from the auction buyer after the registration of the immovable in the name of the auction buyer 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 auction buyer and the auction is finalized, the registration procedures for the immovable are carried out by writing a writ to the relevant land registry office. For the auction to be finalized, a lawsuit for the annulment of the auction must not be filed within 7 days from the auction, or any such lawsuit filed must be dismissed. During the registration procedures at the land registry, it must be verified whether a lawsuit for the annulment of the auction has been filed in the Civil Court of Peace.

Article 134 of the Enforcement and Bankruptcy Law, titled "Result and Annulment of the Auction," states: "The buyer to whom the immovable is auctioned by the enforcement office acquires the ownership of that immovable. (Added sentence: 17/7/2003-4949/38 art.) The manner in which the immovable will be preserved and managed until the auction is finalized is decided by the enforcement office. (Added sentences: 24/11/2021-7343/27 art.) Upon the request of the auction buyer, the enforcement office orders the person residing in the sold immovable based on a lease 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 party fails to deposit the rent or the determined fee to the enforcement office despite the warning, the provision of Article 356 is applied by analogy. The amount deposited in this way is paid to the right holder according to the result of the auction.”

The registration status at the land registry carried out by the sales office is of an explanatory nature. If the buyer pays the auction price, Article 133 of the Enforcement and Bankruptcy Law finds application. If the buyer fails to pay the auction price immediately or within the given time after the immovable is auctioned to them, the auction decision is revoked by the sales officer, and the security deposit is confiscated to be set off against the amount the buyer is obliged to pay. If the conditions are suitable and the address of the bidder who made the highest bid before the auction creditor is known, the notification process is carried out, and they are informed to take delivery within three days at the price they declared at the auction. If they agree to purchase, they acquire the status of the auction buyer at this point. If they remain unresponsive to the notification or refuse, the immovable is put up for auction again by the sales office without wasting time. The auction is no longer notified to the relevant parties, but they are informed only by an announcement made at least seven days before the sale. Upon 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 auction creditor. All buyers and their guarantors who participate in the auction and subsequently fail to deposit the auction price, thereby causing the annulment of the auction, are held jointly and severally liable for the difference between the price they offered and the final auction price, as well as for other damages and default interest. Differences are deducted from the deposited security amount.

Procedure for Annulment of Auction Following Partition Suits

The subject of the annulment of the auction 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 Auction." In cases where the circumstances that may lead to the annulment of the auction occur, a lawsuit for the annulment of the auction is one of the most frequently encountered cases in practice. Circumstances that may lead to the annulment of an auction can occur during the preparation stage of the auction or during the execution of the auction. The buyer may have been misled by the parties or third parties through bid rigging. Non-compliance with the announcement procedures during the preparation stage of the auction, failure to comply with legal deadlines, or the absence of the specifications in the sales announcement are accepted as grounds that may constitute the annulment of the auction. At the point of conducting the auction, it is necessary to act in accordance with Articles 126 and 129 of the Enforcement and Bankruptcy Law. Otherwise, the ground is prepared for the occurrence of behaviors that may lead to the annulment of the auction. For example, the sales officer conducting the auction failing to shout three times appears as a rule violation regarding the annulment of the auction. Bid rigging is also among the reasons that constitute the annulment of the auction. Behaviors and actions that prevent the auction from being conducted in a healthy manner are considered factors that constitute the annulment of the auction.

Article 235 of the Turkish Penal Code, titled "Bid Rigging," states: "A person who engages in bid rigging in tenders for the purchase or sale of goods or services or for leasing on behalf of public institutions or organizations, as well as in construction tenders, shall be sentenced to imprisonment from three to seven years.

(2) In the following cases, it shall be deemed that bid rigging has occurred:

a) By fraudulent means;

1. To prevent persons who have the qualification or conditions to participate in the tender from participating in the tender or in the transactions in the tender process,

2. To enable persons who do not have the qualification or conditions to participate in the tender to participate in the tender,

3. To exclude offered goods from evaluation by claiming that they do not possess the qualities specified in the specifications, even though they do,

4. To include offered goods in evaluation by claiming that they possess the qualities specified in the specifications, even though they do not.

b) Providing others with access to information that is related to the offers and that should be kept confidential according to the tender legislation or specifications.

c) By using force or threats or other unlawful acts to prevent persons who have the qualification or conditions to participate in the tender from participating in the tender or in the transactions in the tender process.

d) The making of explicit or secret agreements between persons wishing to participate in the tender or participating persons in order to influence the tender conditions and especially the price.

(3) (Amended: 11/4/2013-6459/12 art.) In the event that the crime of bid rigging is committed;

a) By using force or threats, the lower limit of the base penalty cannot be less than five years. However, in cases where the qualified forms of the crime of intentional injury or threat requiring a heavier penalty occur, a penalty is also 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 subparagraph (a) of this paragraph, the offender is sentenced to imprisonment from one to three years.

(4) Public officials who obtain benefits due to bid rigging are also punished according to the relevant crime provision for this reason.

(5) The provisions of the above paragraphs also apply in cases of bid rigging in auctions or tenders conducted through public institutions or organizations, or in the purchase or sale of goods or services or leasing on behalf of professional organizations of public institution nature, companies established with the participation of public institutions or organizations or professional organizations of public institution nature, foundations operating within them, associations working for the public benefit, or cooperatives."

Bid rigging, regulated as a serious crime under the Turkish Penal Code, is listed as cases of bid rigging through fraudulent acts such as preventing persons who have the qualification or conditions to participate in the tender from participating in the tender or the transactions in the tender process, ensuring that persons who do not have the ability or conditions to participate in the tender participate, excluding offered goods from evaluation by claiming they do not have the qualities specified in the specifications even though they do, and including offered goods in evaluation by claiming they have the qualities specified in the specifications even though they do not. The creditor being misled or falling into error regarding the essential elements of the item sold is also a ground for the annulment of an auction. For example, a discrepancy in information between the surface area of the immovable specified in the specifications and the actual situation is a reason for the annulment of the auction.

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

Article 134 of the Enforcement and Bankruptcy Law, titled "Result and Annulment of the Auction," states: "The annulment of the auction can be requested by way of complaint from the enforcement court within seven days from the date of the auction, provided that an address in the country is shown, exclusively by the creditor who requested the sale, the debtor, the persons registered in the official registry of the seized property, the holders of limited real rights, and those who participated in the auction by placing a bid, 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 transactions that took place up to the moment the auction was held at the latest on the day of the auction."

In a partition suit, the persons authorized to file for the annulment of the auction are; stakeholders, heirs, the creditor if the lawsuit was filed by a creditor of one of the stakeholders, persons in the land registry, and those who participated in the auction by placing a bid. As persons who will be affected by the improper conduct of the auction, they have the right to file a lawsuit for the annulment of the auction.

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

Exceptional situations are regulated in Article 134 of the Enforcement and Bankruptcy Law. If the sales announcement was not served to the parties, or if it is learned later that there was an error in the essential elements of the sold item or that there was bid rigging, the complaint period is accepted as seven days starting from the date of learning, provided that at most one year has passed since the auction.

The court with jurisdiction and competence in lawsuits for the annulment of the auction is the Civil Court of Peace, as in the partition suit. A decision regarding the acceptance or rejection of the request for annulment of the auction will be made by the judge of the Civil Court of Peace. The Civil Court of Peace judge first invites the parties by setting a hearing date within twenty days following the request for annulment of the auction. The plaintiff in the lawsuit for the annulment of the auction must prove that their rights have been violated and their interests harmed by alleging corruption in the auction, and must report a residential address within the country. In the event that the court decides to reject the request as a result of the trial held by the Civil Court of Peace in the annulment of the auction lawsuit, the plaintiff is ordered to pay a fine at the rate of ten percent of the auction price. No fine is imposed in a rejection decision made during the examination without entering into the merits of the case. If the Civil Court of Peace finds the claims and demands of the plaintiff in the annulment of the auction lawsuit to be justified, it decides on the annulment of the auction. If the decision regarding the annulment of the auction given by the Civil Court of Peace becomes final after no appeal is filed, the ownership right that the buyer acquired with the auction also ends. If the immovable has been registered in the land registry, the ownership is returned to the previous partners by having the registration canceled. 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 over the immovable before the annulment of the auction are protected.

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

CONCLUSION

A partition suit 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 under joint ownership, the partition is ensured using various methods. The most important result of a partition suit is that, as I have mentioned in detail above, there is no losing party as a result of the lawsuit. When a judicial termination occurs in a partition suit involving joint ownership, there is no reduction in the value of the assets, but the shares of the stakeholders are determined in kind or in cash. In a partition suit, if accepted by the judge of the Civil Court of Peace, the property is subject to sharing by being converted into cash, in kind, or into floor ownership. If the lawsuit is rejected, no changes are made to the existing situation. Waiving a partition suit does not prevent the defendant parties from continuing the lawsuit. In a partition suit, the judge of the Civil Court of Peace may be forced to use their discretion by taking into account the high interests of the parties where necessary within the framework of the rules. The main goal is for each stakeholder to reach their right arising from the law in the sharing of the property subject to the partition suit, even if years later, without being harmed. The most frequently encountered legal remedy to solve the problems experienced in the sharing of the inheritance left by the deceased among the heirs in inheritance law is the partition suit. I hope that the right is protected by the judge of the Civil Court of Peace, through the sales office auctioning the movable or immovable property within the framework of the rules upon a decision of sale following the judgment, and distributing the price to the shareholders.

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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