Determination of Ownership of Improvements Case

The term "muhdesat" in Turkish law means things that are constructed later. In our legal system, this term refers to the gardens, orchards, built structures, planted trees, and similar items found on a property that has been surveyed for cadastral registration.

In cases regarding the determination of the ownership of these improvements, the court is asked to establish who constructed the buildings, planted trees, etc., that have become an integral part of the real estate.

For example, in situations where a person who believes a disputed property belongs to them constructs a building, plants a vineyard, or trees on it, they can face an injunction against interference and a lawsuit for unlawful earnings. Or, if the person who made the improvements is not the registered owner in the land registry, they might file a lawsuit for the cancellation and registration of the title deed. In these cases, it is possible and necessary for the owner of the improvements to also request the determination of their ownership.

Additionally, in a lawsuit for the dissolution of joint ownership, if the land registry's declarations section contains a record that the improvements belong to one or several of the owners, or if all the property owners unanimously agree that the improvements were made by one or several owners on their behalf, the court handling the dissolution of joint ownership must allocate the sale price of the property during the distribution in a way that ensures only those owners who made the improvements receive the corresponding portion of the sale proceeds. If there is no record in the land registry about the improvements, or if the property owners do not unanimously agree on this matter, the court should treat it as a preliminary issue, resolving the dispute over the improvements itself if the value (in terms of the improvements) falls within its jurisdiction. If it exceeds its jurisdiction, the court should give the owner or owners claiming the improvements a deadline to file a lawsuit for determination and wait for the outcome of this lawsuit. Apart from the cases mentioned above, it is possible to file a lawsuit for the determination of ownership of improvements whenever the owner of the improvements is different from the registered owner in the land registry.

Claim for Ownership in the Case of Determining the Ownership of Improvements

In this case, the focus is not on determining the ownership of the improvements (muhdesat), but rather on identifying who made these improvements. Since the determination of ownership implicitly includes identifying who made the improvements, a decision regarding the ownership of the improvements is given if the conditions for determining the improvements are met.

Claim for Determination of Improvements in the Lawsuit for the Dissolution of Joint Ownership

Additionally, as mentioned above, in cases like the dissolution of joint ownership involving properties with improvements, any disputes regarding the improvements are treated as preliminary issues by the court. The division of property, including the value of the improvements, is calculated and executed accordingly.

Other Important Aspects Regarding the Determination of Improvements

It should not be assumed that the term "muhdesat" refers to every type of structure on a property. This term specifically pertains to elements like buildings, constructions, trees, and vineyards that are permanently established on the property. Easily removable structures are not considered improvements (for example, a prefabricated house that can be transported is not counted as an improvement).

Against Whom is the Lawsuit for the Determination of Ownership of Improvements Filed?

The lawsuit for determining the ownership of improvements should be filed against all registered property owners who do not acknowledge the plaintiff's ownership of the improvements. A lawsuit cannot be initiated against co-owners or registered owners who explicitly admit the plaintiff's ownership of the improvements. However, those admitting the ownership must make their acknowledgments explicitly. The lawsuit should be filed against all registered owners who have not made a clear statement regarding the ownership of the improvements.

Competent Court for the Lawsuit for Determination of Ownership of Improvements

The competent court for handling the lawsuit for the determination of ownership of improvements is the Civil Court of First Instance. The court with jurisdiction over this case is the one located in the area where the improvements are situated.

The Decision on the Determination of Ownership of Improvements Cannot be Enforced Until Finalized

A judgment regarding the determination of ownership of improvements cannot be enforced until it becomes final. Similarly, litigation costs and attorney fees included in the judgment, being ancillary to the main decision, cannot be enforced until the judgment is finalized.

Procedure for Determination of the Value of Improvements and Land

In cases of dissolution of joint ownership through sale, if the property in question has integral parts such as buildings, trees, etc., they must be sold along with the land. However, if there is a registration in the land registry indicating that the improvements belong to certain co-owners, or if all co-owners unanimously agree on this, and if the improvements increase the value of the land, the values of the land and the improvements are determined separately as of the date of the lawsuit. These determined values are added together to calculate the total value of the property. The proportion of this total value attributable to the land and to the improvements is then determined by establishing a percentage ratio. The distribution of the proceeds from the sale is carried out based on these ratios. The portion attributable to the improvements is given to the co-owner who owns them, while the remaining amount is distributed among the co-owners according to their shares. If it is discovered that the integral part (improvement) belongs not to the co-owners of the land but to a third party, it is not possible to include this person in the lawsuit as the owner of the improvement and to give them a share of the sale proceeds.