Through mediation, pursuant to the second paragraph of Article 1 of the Law on Mediation in Civil Disputes No. 6325, titled “purpose and scope”; “Only the resolution of private law disputes arising from business or transactions on which the parties can freely dispose of” is provided. However, it is controversial that the preparation of the mediation report, which includes the subjects that the parties or their proxies can take legal action at the Land Registry Directorates with their free will, has the effect of a legal verdict (court decision) by obtaining an enforceable annotation from the relevant court. The evaluations made in my opinion are as follows;
Pursuant to Article 705 of the Civil Code numbered 4721, titled “acquisition of immovable property, 1. registration”; “The acquisition of immovable property is by registration. In cases of inheritance, court decision, forced execution, occupation, expropriation and other cases stipulated in the law, property is acquired before registration. Thus; court decision ensures that property is acquired before registration.
Pursuant to the second paragraph of Article 18 of the Law No. 6325 on Mediation in Civil Disputes, titled “agreement of the parties”; “If the parties reach an agreement at the end of the mediation activity, they may request an annotation regarding the enforceability of this agreement document… The agreement containing this annotation is considered a judgment document.” It is clear that the mediation report, for which an annotation of enforceability has been obtained from the relevant court, has the force of a court decision. In that case, the mediation report regarding real estate disputes, which has the force of a court decision (judgment) with an annotation of enforceability, has the force of a court decision that enables the property to be acquired before registration.
Pursuant to paragraph 3 of Article 18 of the Law on Mediation in Civil Disputes No. 6325, titled “agreement of the parties”; regarding the issuance of an enforceable annotation “The scope of the review is limited to the issues of whether the content of the agreement is… suitable for mediation.” In that case; In case the interests of third parties other than the parties are not affected or the enforcement of the jurisdiction concerning public order is not required, it is possible to regulate the mediation issue in real estate disputes with the mediation report prepared on the axis of the parties’ free will. To explain with an example; Just as the transfer of the real estate by all of the heirs consisting of 4 (four) stakeholders to one of the stakeholders should be possible with the presence of the representatives of the 4 (four) stakeholders at the title deed and their demands, if possible, it is also possible with the mediation report. In other words; Real estate disputes that cannot be resorted to mediation pursuant to the aforementioned mandatory provision include the issues of changing the matters in the land registry that cannot be changed with the will of the parties, only by a court decision, as in the case of the correction of the land registry due to the corrupt registration specified in Article 1025 of the Civil Code No. 4721. Thus, legal disputes that are not suitable for mediation are determined by expressly stating the obligation to file a lawsuit for the establishment of any legal action under the law.
Pursuant to paragraph 3 of Article 18 of the Law on Mediation in Civil Disputes No. 6325, titled “agreement of the parties”; regarding the issuance of an enforceable annotation “The scope of the examination is limited to the issues of whether the content of the agreement is suitable for enforceable enforcement.” In that case; Beyond the possibility of applying to the relevant Enforcement Directorate for the execution of a court decision (verdict), it should be understood that the effect of the court decision (verdict) has the ability to directly apply the mediation report before all kinds of individuals, public and private institutions and organizations.
Pursuant to the second paragraph of Article 367 of the Code of Civil Procedure numbered 6100, titled “effect of appeal on execution”;“Decisions regarding family law and real rights regarding immovable property cannot be executed until they are finalized.” In that case, the issue that the court decisions (writs) regarding the real rights related to the immovable property cannot be executed before they are finalized can be overcome with the finalization of the court decision regarding the issuance of an enforceability annotation to the mediation report.
Administrative arrangements to be made in order to eliminate the confusion regarding the direct application of the mediation report in title deed transactions and the content of these arrangements will guide.
Public Law Specialist Betül ASLAN
Hukukihaber.net
