Rectification of a Wrongful Registration
A land registry record that does not rest on a valid legal ground, or whose legal ground has later fallen away, may amount to a wrongful registration depending on the circumstances of the case. Whether a person whose right in rem has been impaired can request that the land registry be brought into line with the actual state of the right is assessed together with the basis of the registration, the legal position of the parties and the acquisitions of third parties.
In this context:
- Registrations without a legal ground
- Records based on a transaction that is invalid or that has later fallen away
- Erroneous or duplicate registrations
- Land registry records that do not show the actual rightholder
- Claims for cancellation and rectification of the record and for registration in the name of the rightholder
- Compensation and monetary claims that may arise where registration is not possible
Registrations Based on a Forged Signature, Forged Power of Attorney or Forged Document
Where it is alleged that a property was transferred by means of a forged identity document, signature, power of attorney, certificate of inheritance or other document, the civil and criminal proceedings may affect each other. The manner in which the document was prepared and used, the land registry transaction file, notary records, signature examination and the chain of transfers are addressed together.
In this context:
- Sales made with a forged power of attorney
- Unlawful use of identity information
- Allegations of a forged signature or official document
- Review of notary, consulate and land registry transaction records
- Expert procedures for signature and document examination
- Assessing the criminal investigation and the civil action together
- Good faith of subsequent owners and the principle of reliance on the land registry
The existence of a criminal investigation does not by itself remove the examination of the parties, time limits and evidence in the civil action; each proceeding is pursued within its own procedural rules.
Reliance on the Land Registry and the Position of a Good-Faith Third Party
The fact that an entry in the land registry is wrongful does not mean that the property can be recovered from the last owner in every case. Whether a third party who acquired a right in rem in reliance on the land registry record acted in good faith is assessed under the provisions of the Turkish Civil Code that protect reliance on the land registry.
The following concerning the third party:
- Whether the party knew of the unlawfulness of the earlier transaction
- Whether, in the specific circumstances, the party should have known
- Whether the land registry record contained an annotation, injunction or other warning entry
- The transfer price, the relationships between the parties and any unusual circumstances at the time of the transaction
- The actual use of the property and the visible situation of the former rightholder
- The timing of the transfers and how they are connected with one another
are examined together with all the evidence in the file. Where registration of the property itself is not possible because the acquisition of a good-faith third party is protected, claims for value and compensation that may be directed against the responsible persons or institutions are assessed separately.
Cancellation of Title, Rectification of the Land Registry Record and Annulment of Dispositions Are Not the Same Action
Claim for Cancellation and Re-Registration of Title
The aim is to cancel the record and register the property in the name of the rightholder, on the allegation that the land registry record is legally invalid or contrary to the actual state of the right. A judgment granting the claim, if its conditions are met, changes the ownership record.
Rectification of the Land Registry Record
Claims aimed at correcting clerical errors and inconsistencies in the owner’s identity, first name, surname or property details may be subject to a different administrative or judicial procedure, depending on whether there is a dispute as to who owns the property.
Action for Annulment of Dispositions
An action for annulment of dispositions, brought on the allegation that assets were removed from a creditor, does not as a rule transfer title to the creditor and does not remove the land registry record. Its aim is, under certain conditions, to enable the creditor to pursue the property through enforcement.
Action for Dissolution of Co-Ownership
The aim is to bring a property held in co-ownership in shares or joint ownership out of co-ownership by partition in kind or by sale. It is directed not at the invalidity of the existing land registry record but at terminating the co-ownership.
Because bringing a claim under the wrong type of action may cause serious problems as to jurisdiction, parties, court fees, time limits and legal consequences, the nature of the dispute should be determined before the action is filed.
A Wrong Record Does Not Always Lead to Restitution
The invalidity of the first transfer and the legal position of the subsequent owner are examined separately. The date on which the last owner acquired the property, the land registry records, the facts the owner knew or should have known and the owner’s relationship with the earlier parties are assessed together. Where registration of the property itself is not possible, claims for value and compensation that may be directed against the responsible persons are determined separately.
When a suspicious transaction comes to light
The current record and the documents underlying the transaction are obtained, and the date on which you learned of it is documented. Where forgery is alleged, the civil action, the criminal investigation and the need for interim protection are planned together. A criminal complaint alone does not restore the title to its former state or stop the transfer of the property.