Müşterek mülkiyette taksim ve taksim engelleri
Partition in collective ownership and obstacles for partition
- Tez No: 74854
- Danışmanlar: PROF. DR. AHMET KILIÇOĞLU
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Kamu Yönetimi, Law, Public Administration
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 1999
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Özel Hukuk Ana Bilim Dalı
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 119
Özet
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Özet (Çeviri)
109 ABSTRACT This dissertation deals, at large, with the termination of collective ownership (or joint property) through partition. In this vein, it is divided into three chapters: In the first chapter, the author takes into account the concept of collective ownership and its legal dimension as well as the termination of the collective ownership in general. It is also enumerated the ways through which collective ownership comes to and end by all shareholders (or partners). In chapter two, the core of the problem is scrutinized: that is to say, the termination of collective property through either consensual or judiciary partitions. In the final chapter, the author dwells into the impediments of collective ownership. To this end, these impediments are taken into account in two sections.: those from rooting in the Civil Code and those springing from private laws. Collective ownership is the condition that the right to property over a thing belongs to a number of persons. The termination of such property relationship is the situation that shareholders over a given collective ownership are entitled to claim individual right to property by terminating collective ownership. The Civil Code has always granted the proprietors of collective ownership the right to do away with the shared condition (except the limitations set out by the law). In this case one cannot mention a common personal goal or shared condition; rather joint proprietors have come together for economic purposes. That the collective union in question terminates for one or a couple of shareholders is named as limited termination. Whereas the termination of the relationship for all of the shareholders is named as 'ultimate termination'. Apart from general reasons of termination such as transfer of a right or of title to property, voluntary relinquishment, discharge from partnership, the Civil Code recognizes a private reason for termination called as 'partition'. Partition in general is the termination on collective ownership through either agreement upon the demand of one of the shareholders or court's decision. In latter case, upon having recourse to judge, the judge decides either on real partition provided that property in question could be divided without significant damage or on 'partition in cash' in cases where the first alternative is impossible or no agreement is reached on the issues by all shareholders. The termination of collective ownership is not liquidation. The right to demand partition has been endowed for each shareholder in accordance with his/her share and by virtue of its legal peculiarity, it is connected to property when this right is forwarded, other shareholders undertake the duty to materialize partition. When the right to partition is used by consensus or by one shareholder, shareholders may prepare a partition contract. No regulation is there as to the form of such contract. If the subject is a real estate, in accordance with article 634 of the Civil Code and article 26 of the Real Estate Registration Act, it is incumbent upon parties that partition contract be made in official form and each share be registered in the Registration Book as an independent property. The exemption of art. 634 is laid out in article 611/2. That partition contract of inheritance is done in regular written form is sufficient for the validity of the contract. It is impossible to apply this exemption, by analogy, for partition contract that are subject to joint tenancy. Apart from partition, the laymen have regulated the expulsion from partnership. Such an attitude has been rather beneficial for solving disagreements. As far as we are concerned, the solution brought by article 626/a of the Civil Code contains some flaws. First and foremost, one would expect that more detailed and special regulations shouldno have been made regarding what sort of conditions bring about unbearableness In addition, in recent amendments, no provisions have been envisaged as to the re-inclusion of shareholders who lead to unbearable condition from participating in auction sale. Otherwise, after a certain period, partner in question may revert back to collective ownership via deceitful ways. Thus, the goal that is expected from the amendment of the code is mat article 626/a does not provide a time period similar to article 25/4 of the Condominium Act according to which in the case of the failure to sue the case within prescribed times, this right falls down. It is inconvenient to keep shareholders under threat once and for all and give the chance to keep also other shareholders under pressure. There is considerable benefit in clinging to a time limit. One should conclude by saying in a couple of sentences that there are certain special laws that prevent partition and the rule of bona fides. These laws can be articulated as the Reconstruction Act, the Condominium Act, the Settling Act, the Agricultural Reform Act, the Squatter House Act In each of these acts, there is a provision on improbability of partition in terms either of amount or both amount and time depending on the aim of act. Another value that disallows partition is the rule of bona fides. Here the lawmaker has aimed to prevent, apart from claiming in an inappropriate time, the claim of partition demand for the purpose of damaging others.
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