Land registry records are official registries that document who owns the immovables, the shareholders and their shares on the immovables, the area of the immovables, the island/parcel numbers, whether the immovables are pledged or whether there is a cautionary decision on them. As a rule, the ownership of an immovable is acquired only by the official transfer process to be made in the title deed and the registration to be made in the land registry as a result. This process is called “registration”. Possessory liens on immovables can only be established by registering them in the land registry. As can be seen, the correct determination of the owner of the property right of the immovable and whether it is restricted and the transfer of the rights in a healthy manner is only possible if the records in this registry are accurate and reliable. For this reason, keeping the land registry and auxiliary registries correctly is under the responsibility and control of the State.
In case of material damages due to the wrong or incomplete keeping of the land registry, the right holders may demand compensation for these losses by filing a compensation action against the State. The state is responsible for the compensation of these damages, even if it is not at fault, against the right owner. In this bulletin, we discussed the lawsuits filed for compensation for damages arising from the wrong records in the land registry and the responsibility of the State in these lawsuits.
1) How to Acquire the Ownership of the Real Estate?
In our law, most transactions related to real estate are legally valid if they are made in official written form. A written contract between the parties is not sufficient to transfer the ownership of the real estate. Acquiring the ownership right of an immovable is only possible by registration in the land registry. The meaning of this rule is: Except in exceptional cases of unregistered acquisition (court decision, acquisition of right through inheritance), you can only be legally treated as the owner of that immovable if you appear as the owner in the deed. Because the purchase and sale of immovables is carried out through the registration process on the land registry and becomes official.
Not only the transfer of the immovables, but also the acquisition of other rights related to the right of ownership on them is registered with the title deed. For example; If a pledge is to be established on an immovable, this will only be possible with the registration to the title deed. Likewise, for the loss or removal of these rights, this record in the land registry can be deleted or changed, that is, “abandoned” or “amended”.
2) The Nature of the Land Registry
The land registry is one of the official registries specified in article 7 of the Turkish Civil Code. In accordance with this provision, official registers and promissory notes constitute proof of the accuracy of the facts they document. That is, everyone is right to trust and believe that the information and facts recorded in the land registry are correct. Because there is a presumption arising from the law that these records are correct. It is always possible for those concerned, who think that there is an error in the records in the registry, to claim and prove the opposite.
The land registry has the ability to show and announce the ownership of immovable property and other real rights (such as pledge, passage, usufruct) related to the property right. In accordance with the principle of publicity, the records in the land registry are open to inspection by anyone concerned. If a person takes over an immovable registered in the title deed, that person is deemed to have taken over it with the same properties registered in the title deed. For this reason, the records of the immovable should be carefully examined while the transfer process is carried out in the title deed. Otherwise, the transferee of the immovable cannot later claim that she/ he did not know the properties registered in the title deed, and this claim will not be heard. Because it is legally assumed that everyone knows these records, and there is no way to claim or prove the opposite of this situation.
3) Responsibility of the State for Keeping the Land Registry Correctly and Completely
Shaking the public trust and belief that the land registry is kept correctly and without errors may lead to both turmoil and loss of confidence in the State and loss of rights of individuals. For this reason, the State is primarily and primarily responsible for keeping the registry error-free and accurate, in short, for the registration, deletion, and modification of this registry to be carried out in accordance with the truth and law. It is clearly stated in Article 1007 of the Turkish Civil Code that if the state does not fulfill this responsibility, it must cover the damages that may arise from it. According to this;
“The State is responsible for all damages arising from keeping the land registry. The state shall recourse to the officials who are at fault in the occurrence of the damage.”
As it can be understood from the text of the article, the land registry officer is not directly responsible for the damages arising from the faulty, incomplete or unlawful keeping of the land registry. For this reason, compensation cases to be filed should be directed to the State, that is, to the Treasury of Finance.
The state is perfectly responsible for all damages arising from the keeping of the land registry, even if there is no fault, intention or negligence, as required by law. For example; Regardless of whether the title deed officer who caused the mistake in the registry made a wrong registration on purpose, neglected his duty or made a wrong registration as a result of carelessness, the damage arising from the faulty transaction is covered by the State.,
In order for the State to be held responsible for the damage caused by keeping the land registry, it is necessary and sufficient that the following three factors occur in the event;
- The register must have been kept in violation of the law,
- There must have been a material damage caused,
- the damage must be the illegal keeping of the registry.
“Perfect liability is based on the change or loss of interests and real rights linked to the land registry as a result of incorrect registration and deprivation of these rights. Because the State, which undertakes and undertakes to keep the records correctly, is also obliged to pay the damages arising from false and baseless records. The presence or absence of fault is not important for the responsibility of the state, but only in the internal relationship during the recourse to the official of the State.”
“Due to the cancellation of the title deed registration, the amount of compensation should be equal to the actual loss incurred by the title deed owner. Actual damage; It is the decrease in the property of the owner of the title deed due to the cancellation of the title deed registration. The amount of compensation should be such that the same situation can be established as the property of the injured person would have been if the damaging action had not taken place. The actual loss of the person who suffered the damage will be determined according to the assessment date that will be taken as the basis for determining the compensation amount, and this date is the date of the damage. 705/2 of TMK No. 4721. Pursuant to Article 705/2 of the TMK numbered 4721, the property right will expire as of the date of the finalization of the lawsuits that are willing to cancel and register the title deed, and as of this date, the real and legal persons whose title deeds have been canceled will incur losses. According to the date of damage, the nature and value of the real estate whose title has been cancelled should be determined. The nature of the immovable; If it is land, the real value should be determined by the income method method, and if it is land, it should be calculated according to the precedent sales that do not have a special purpose before the evaluation day.”
It includes the provision “The State is responsible for all damages arising from the keeping of the land registry”, and the liability regulated in this article is a type of liability that is not based on fault (objective), Whether or not the land registry manager or officer is at fault, it is sufficient to act contrary to the rules of law protecting the interests of people’s assets while keeping the registry. In addition, although the plaintiff suffered damage due to the fact that the immovable that he bought based on the fake power of attorney issued at the notary public was subsequently canceled due to the wrongful registration and registered in the name of the real owner, the presence or absence of the fault is not important for the responsibility of the state. The State, which undertakes the duty of keeping the land registry, also undertakes the danger arising from the records contrary to the right status due to the trust granted to this registry.
4) Which Mistakes Made in the Land Registry Require Compensation Against the State?
Although all the damages arising from keeping the land registry are mentioned in article 1007 of the Turkish Civil Code, it is necessary to clarify the issue. Examples of land registry errors reflected in judicial decisions and the resulting damages are listed below for explanatory purposes;
- The land registry officer knowingly and willingly recording incorrect information,
- If the land registry officer accidentally makes a wrong record or deletes the existing record due to his negligence or carelessness for no valid reason,
- Making changes in the land registry records when there is no legal and valid reason,
- Accidental transfer of privately owned immovable or part of it to State ownership,
- Incorrect or incomplete records in the sub-registries (for example, in the journal book) to the land registry,
- In cases where a buyer buys this immovable without knowing that the registration is corrupt (invalid) by relying on the corrupt registration in the land registry, the former owner of the immovable suffers a loss,
- Even though the documents that are the basis of the registration are fake, registration in the registry without the necessary checks (such as fake identity, fake power of attorney, fake inheritance certificate),
- Having more than one title deed for the same real estate (double title deed),
- when the mortgage right on the immovable is not registered in due time or not deleted from the registry despite the court decision,
- Making transactions in the land registry based on the declaration of the person who is not entitled,
The subject of this case is the loss of ownership of the immovable, the decrease in the area of the property, the loss of the right of pledge, and the damages incurred due to the continuation of the right of unjustified pledge.
“As the land registry procedures are complementary to each other starting from the cadastral determination processes and since the cadastral processes form a whole during the formation of the land registry, the responsibility of the state arising from the cadastral processes should be within the scope of Article 1007 of the TMK.”
5) Situations for Which the State is Not Responsible
If the land registry is held unlawfully as a result of the fault of the injured person or the third person, the State is not obliged to pay these damages. Because here, there is no causal relationship between the damage and keeping the registry wrong. For example, if the person who owns the immovable has deceived or mistakenly transferred her immovable property to someone else in the title deed, she cannot claim any damages from the State. Likewise, the State will not cover this loss, since there will be no mistake in the land registry, even if there is no such sale in fact, in collusion (consulted, fraudulent transfers) sales made in the title deed.
6) Duties and Authorities in Compensation Lawsuits to be Filed Due to Losses Arising from the Keeping of the Land Registry
The court in charge of compensation cases to be filed against the State for damages arising from the unlawful keeping of the land registry is the Civil Courts of First Instance. The competent court is the court of the place where the land registry is located. At first glance, although it may come to mind that administrative courts may be in charge, since the defendant is the State, the correct judicial branch in this case is the judiciary.
CCP article 1007: Cases regarding the responsibility of the state are heard in the court of the place where the land registry is located.
“This lawsuit, which is filed after the cancellation of the title deed registration of the immovable property belonging to the plaintiff with the finalized court decision, and which includes a claim for compensation in return for the loss of the right to property, must be heard in the judicial jurisdiction due to this nature. Considering the decision of the General Assembly of the Supreme Court of Appeals, dated 18.11.2009 and numbered 2009/4-383-2009/517, that the cases filed in this way should be heard in the judicial court and the state should be responsible for the damage… also, considering the precedent decision of the Court of Conflict, dated 14.07.2014 and numbered 2014/736, 2014/791 regarding the real estate in the same village, it was decided that the judicial judiciary was in charge; while the court should decide on the basis of the work, determine the nature of the immovable and the extent of the damage, and decide according to the result, it was not considered correct to decide to reject the case due to the judicial remedy.”
7) Statute of limitations
In this case, the statute of limitations for the wrongful act in article 72 of the Turkish Code of Obligations is applied. Accordingly, the compensation case becomes time-barred after two years, starting from the date on which the injured person learned of the loss and the person liable for compensation, and in any case ten years, starting from the date of the act.
8) Result of Compensation Case and Recourse Litigation
The state, after paying the damage to the injured person, may request back the damage it has paid from the land registry officer, depending on whether the mistake in the registry is caused by the deed officer’s fault or not. This is called a recourse lawsuit. In the recourse case, the State must prove that the material damage occurred as a result of the faulty behavior of the land registry officer. The flaw here is deliberate or undeserved misregistration. In both cases, the State will try to collect the damage from the land registry officer. However, the point to be noted here is that the injured person does not have a direct lawsuit or request with the land registry officer. The injured person can only claim from the State the damage arising from the wrong record keeping. The state also collects the compensation paid from the land registry officer, if there are conditions.
Compensation lawsuits can be filed against the State due to the financial losses suffered by individuals due to the keeping of the land registry. These cases are heard in the Civil Courts of First Instance, and it is important to open them before the statute of limitations expires. You can contact us for more information on the subject or for your request for legal assistance.
ERTAŞ, Şeref, “Tapu Sicilinin Yanlış Tutulmasından Doğan Zararlardan Hazinenin Sorumluluğu”, erişim: https://hukuk.deu.edu.tr/wp-content/uploads/2020/01/S.Ertas-3.pdf, erişim tarihi:17.06.2021.
SARIASLAN, Damla, “Tapu Sicilinin Tutulmasından Doğan Zararlardan Devletin Sorumluluğu”, TBB Dergisi, 2017/133, erişim: http://tbbdergisi.barobirlik.org.tr/m2017-133-1706, erişim tarihi:16.06.2021.
5th Civil Chamber of the Supreme Court Closed, 2017/10479 E., 2020/3035 K.
The General Assembly of the Supreme Court Decision dated 05.03.2003 and numbered 2003/19-152 E. – 2003/125 K., dated 29.09.2010 and numbered 2010/14-386 E. – 2010/427 K.; dated 15.12.2010 and numbered 2010/13-618 E. – 2010/668 K.; 5th Civil Chamber of the Supreme Court Closed, 2017/10479 E., 2020/3035 K.
5th Civil Chamber of the Supreme Court, 2020/8782 E., 2021/1139 K.
Turkish Civil Code
Turkish Code of Obligations
 5th Civil Chamber of the Supreme Court Closed, 2017/10479 E., 2020/3035 K.
 The General Assembly of the Supreme Court Decision dated 05.03.2003 and numbered 2003/19-152 E. – 2003/125 K., dated 29.09.2010 and numbered 2010/14-386 E. – 2010/427 K.; dated 15.12.2010 and numbered 2010/13-618 E. – 2010/668 K.; 5th Civil Chamber of the Supreme Court Closed, 2017/10479 E., 2020/3035 K.
 5th Civil Chamber of the Supreme Court, 2020/8782 E., 2021/1139 K.