Sharing of Property in the Case of Elimination of Joint Ownership

Elimination of joint ownership cases are among the most frequently filed lawsuits in Turkish law. Due to the large number of both the plaintiff and the defendant in this case, it is possible that many people in Turkey today took part in this case as a party.

The purpose of the elimination of joint ownership cases, which is more common in inheritance cases, is to end the right to have the same property with others and to obtain a personal property right as a result of the division of property. Conversion of joint ownership to individual ownership can be possible by sharing the same, that is, by division, or by sharing the sales price by selling the goods.

Although it is a frequently encountered case, not knowing the details of the trial procedure in the case and not being informed about the types of sharing that may be requested in the case can cause loss of time and rights. For the aforementioned reasons, we found it useful to examine this type of case in the light of Supreme Court decisions and share it with you.

1. What is the Elimination of Joint Ownership Case?

It is a lawsuit for the termination of a joint ownership relationship on a movable or immovable property on which there is joint ownership in the form of shared or joint ownership, and instead of obtaining the shares of those who have a share in the property. Shared and common ownership are types of collective ownership that express joint ownership of a property by more than one person in our law.

Shared ownership is a type of joint ownership, which means that the shareholders own a property in such a way that each of them has a certain share ratio. Although the share ratios of the stakeholders on the property are known in the joint ownership, it is not known where these shares correspond to the property. For this reason, if there is shared ownership in the immovables, they can determine how the immovable will be used by making an agreement between the stakeholders.

In common ownership, although there is ownership in common, the share ratios of the stakeholders are not clear. Common property appears in community of heirs and ordinary companies. Common ownership requires that the parties always act together. Therefore, its sustainability is difficult.

It is possible to terminate such common property relations and to obtain the share they have individually, as a result of the lawsuits for the Elimination of Joint Ownership.

2. The Competent Court in the Elimination of Joint Ownership Cases

Cases for elimination of joint ownership are heard in civil courts of peace. The competent court is the civil court of peace in the place where the real estate is located.

3. Who can file an elimination of joint partnership case?

A single stakeholder can file the elimination of joint partnership case, or more than one stakeholder. Each of the stakeholders may request from the court to end the ownership in common of the property they own jointly and to share the property.

4. Against Who the Elimination of Joint Ownership Cases Be Filed?

If one or more of the stakeholders is going to file a lawsuit for the elimination of Joint Ownership, she/he has to show all the owners who have a right on the property as the defendant. The condition for continuing the case is possible with the involvement of all stakeholders in the case. If one of the shareholders dies, his heirs are included in the case instead. It is not possible for this lawsuit to be pursued and adjudicated only against certain stakeholders. The judge ensures that the missing parties are completed.

5. Fees, Costs and Attorney’s Fees in Litigation

The elimination of joint partnership case is subject to a fixed fee. In other words, regardless of the value of the property subject to the lawsuit, the amount of fee to be paid when filing this lawsuit is certain and fixed. Although the litigation expenses will be paid by the plaintiff at the beginning of the case, in the event that the case is concluded, all court costs and attorney’s fees are charged to the parties of the case in proportion to their shares. Because nobody can win or lose this case in theory.

6. How is the property shared in Elimination of Joint Ownership Cases?

In fact, persons who jointly own a property can share this property as they wish by agreeing with each other before or after filing a lawsuit. If the owner partners cannot agree on the sharing or if one of the common owners does not want to share, it becomes mandatory to file a lawsuit and share the property.

The principle is that no stakeholder can be compelled to maintain the ownership in common relationship. For this reason, each of the joint owners has the right to demand the sharing of the property. Sharing is initiated at the request of a single stakeholder. This partnership is terminated by agreement, sharing in kind or sharing by sale.

In cases of elimination of joint partnership, the share of property occurs in two ways. The first of these is the division of the goods and the second is the sharing of the sale price by selling the goods through enforcement.  There are some points to be considered in terms of both sharing type.

6.1. Dividing and Sharing the Goods

The identical sharing, that is, the division of the property, is limited to the cases where the property is suitable for physical division and use. For example; When the stakeholders divide and share a land on which they have common rights, it is the identical sharing. In cases where one of the stakeholders wants the property to be shared identically, the judge must first investigate whether the conditions for the identical sharing are met.

In elimination of joint ownership cases, the court should investigate whether it is possible to divide the property exactly according to the area, quality, number of real estate and stakeholders and zoning legislation in order to decide to divide the property exactly.

 If there is a significant loss of value of the real estate, it cannot be decided to divide it identically. Likewise, if the stakeholders do not give their consent, a part of the real estate cannot be shared.”[1]

In cases where it is possible to share via identical sharing, if the values of the divided parts are not equal to each other, equalization is achieved by adding money to the missing value part. Unless there is an agreement between the stakeholders in the case, the judge cannot decide on its own accord to divide some real estates by giving some to some stakeholders and the rest to other stakeholders.

“If the real estate is within an urban area, technical expert arrange a plot plan in the identical sharing and according to this plan by taking a decision from the Municipal Committee, it is asked whether it is possible to divide according to the Zoning Law and Regulation, from the municipality, and outside the municipality, from the Provincial Administrative Board. If the stakeholders cannot agree on who and what will be given to whom in the allotment project, it is determined by drawing lots in the presence of the judge.
In case of a negative response from the approval authority, it should be decided to eliminate the joint ownership by sale.”

Even if the plaintiff wanted to share by sale when opening the case, the defendants may still want to share exactly. Because in this case, the plaintiff and the defendant have equal rights.

6.2. Sharing Through Sales

Another method of sharing is the distribution of the money obtained by selling the property from the auction through enforcement. If it is not possible to divide and share the property identically, the property is sold by the enforcement directorate and shared.

Another situation that is characteristic of sharing through sales is the determination of fixture. Fixture is an integral part of that land, such as the building and tree on the real estate. This case, which is called the determination of the fixture is carried out through litigation. The lawsuit filed investigates what the structures and trees on the real estate consist of and who has rights to them, and a decision is made accordingly in both cases.

7. The Case of Determination of Fixture

Cases for determination of fixture are among the declaratory actions in civil proceedings. It is not possible for the judgment to be obtained at the end of the declaratory cases to be enforced alone. In order to file a declaratory case, the plaintiff must have a legal interest to file this lawsuit.

When the case for the determination of the fixture is filed, this case is expected to be concluded in terms of the case for the elimination of joint ownership, that is, this case turns into a preliminary issue. After the lawsuit is concluded and the ownership of the buildings, all kinds of structures and trees on the real estate is determined, the lawsuit is concluded by taking these into account.

“Declaratory actions are the precursors of actions for performance, therefore, it is accepted that there is no legal benefit in opening a case of determination, in cases where it is possible to file an action for performance. The existence of legal interest is a condition of litigation and the parties can assert it at every stage of the proceedings, and the judge ex officio also observes it. In case it is determined that there is no legal interest, the case should be rejected out of procedure on the grounds that there is no legal requirement (HMK art. 114/1-h, 115).

In the doctrine and the continuous practices of the Supreme Court, it is accepted that there is a current legal benefit to file the case for determination of fixture in exceptional cases such as the case for the elimination of the pending joint ownership on the real estate, the urban transformation application or the expropriation process.

In the examination of the file; Although there was no elimination of the pending joint ownership case at the time the lawsuit was filed, it was understood that a lawsuit was filed by the plaintiff party on 17.03.2017, before the decision of the court of first instance, with the request of eliminating the joint ownership regarding the real estate no. 200 no. 7 that is the subject of the lawsuit and this case has been registered with the 2017/247 Base number of the Bakırköy 5th Civil Court of Peace, and this situation has been reported to the court, and accordingly, the condition of litigation regarding the legal benefit of the plaintiff in filing a case for determination of the fixture has been completed.”[2]

Conclusion

The elimination of joint ownership cases are one of the most frequently filed lawsuits. If the joint right ownership on a property is terminated by mutual and joint agreement and sharing is not made, the only way to make this sharing is to file this lawsuit.

Elimination of joint ownership cases are generally filed in the case of community of heirs  Since each case has its own characteristics and is a case with moral characteristics, it is best to find solutions that will best satisfy the real desires of the relevant stakeholders. For example, people may not want to sell real estate they see as family heirlooms. Due to the fact that the sale is sold through foreclosure and  auction, the goods will be sold at a lower price than the actual sale value, and warnings should also be made. The parties should be informed about the benefits they can gain from sharing by divide sharing or by selling.

For more information on the subject or to request legal consultancy and advocacy services, you can contact the lawyers of the Solmaz Law and Consultancy team, who are experts in their fields.

Best Regards.

References

KÖROĞLU, Anıl, Medenî Usûl Hukuku Bakımından Ortaklığın Giderilmesi Davası, Doktora Tezi, İstanbul Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Dalı, İstanbul, 2020.

SARIHAN, Banu, “Müşterek Mülkiyetin Sona Ermesi”, Selçuk Üniversitesi Hukuk Fakültesi Dergisi, yıl:2000, cilt:8, sayı:1-2.

Supreme court assembly of civil chambers, 2014/358 E., 2016/174 K., 24.02.2016

Supreme court assembly of civil chambers, 2013/1854 E., 2015/1310 K. 06.05.2015.

8th Civil Chamber of the Supreme Court, 2018/13921 E., 2021/1605 K., 24.02.2021

[1]Supreme court assembly of civil chambers, 2014/358 E., 2016/174 K., 24.02.2016; Supreme court assembly of civil chambers, 2013/1854 E., 2015/1310 K. 06.05.2015.

[2]  8th Civil Chamber of the Supreme Court, 2018/13921 E., 2021/1605 K., 24.02.2021