What is a Construction Contract for Flats (Land Share)?
Construction contract for flats, in other words, construction contract for land share; It is a two-sided contract that involves the owner of the real estate (land) transferring a certain share of the land to the contractor (contractor) and the contractor in return for handing over a certain number of independent sections built on the land in question to the land owner.
There are two reciprocal acts in the construction contract for land share: the land owner transfers certain land shares to the contractor and the contractor transfers the contracted independent sections to the land owner. Here, the contractor or contractor is not relieved of his obligation only by transferring the independent sections that must be transferred to the owner of the land under the contract. In order for the contractor to be completely freed from his debt, he must finish all the independent sections of the structure built on the land in accordance with the architectural project and deliver them to the land owner.
Legal Nature of the Construction Contract for Flat (Land Share)
For the owner of the land; to transfer the share of the land stipulated under the contract to the contractor in the deed when the above-ground license is obtained or the floor altitude is established, and for the contractor; After making the agreed independent sections in accordance with the architectural project, they are a mixed contract that imposes a debt on both parties as of the debt to be transferred to the land owner.
When we look at the debts of the parties in the construction contracts for flats, since the nature of the performance is the transfer of immovable, that is, the construction contract for the share of the land also includes a commitment to transfer the immovable property, the notary is in accordance with Article 60 of the Law. Within the scope of the article, it is obligatory to be done in a notary (official) way. As a rule, construction contracts for flats that have not been made by a notary public are invalid and the parties can only be given by the TBK. It can be demanded back in accordance with its provisions on unjust enrichment. Accordingly, any subsequent substantial changes in the terms of the contract are subject to formal form.
The annotation of the construction contract for flats in the land registry is subject to the same procedure as the provisions on the contracts of promise of sale of immovable property. In addition, it is worth noting that if a measure is placed in the land registry by any court decision in the annotation of such contracts, the application does not annotate the deed by citing this measure, but it has no legal basis and despite the measure imposed by the court decision, the contract must be annotated to the deed because the annotation in question does not bring any negative or positive prejudice to the same right. And its purpose does not contradict the purpose of preventing legal proceedings that may prejudice the right in kind in the land registry.
Types of Construction Contracts for Flats
Although it differs in terms of application, there is no change in terms of shape. In terms of application, there are generally three types of construction contracts for flats; It is the case that all or a certain part of the land is transferred to the contractor in exchange for a collateral mortgage. Subsequently, as the contractor brings the construction to a certain level, the mortgage (collateral) is removed part by part. Yet another type is the transfer of land shares, in other words, the construction contract in exchange for the land share and the land is transferred part by part at certain stages of construction. The most common practice is that both the construction contract for the flat and the contract of promise of sale are made together. In the construction contract for this kind of land share, both the promise of immovable sale and the construction are arranged together in the same contract.
How are Construction Contracts Made in Return for Flats? What are the Shape Requirements?
As a rule, the construction contract for the flat made contrary to the form is invalid. And performances based on an invalid contract may be required in accordance with Article 77 et seq. of the TBK. However, if the contractor has made a large part of the construction as a result of the trust created by the land owner, that is, if it would be contrary to equity to demand the cost of the construction in accordance with the provisions of unjust enrichment, the land owner cannot rely directly on the invalid contract. Liability for compensation based on unfair acquisition provisions will arise against the contractor. The point to be considered here is that the purpose of a large part of the construction will vary according to the nature of the work and since disputes arise in such cases, the majority of the work will be determined by the expert panel to be appointed by the court. In other words, if the contractor has fulfilled his obligation according to the "majority" qualification to be appreciated by the court, the land owner can no longer be in an approach such as I have given up and I am terminating the contract because the TMK. 2 Claims based on bad faith are not protected by law.
One of the points that should be mentioned in terms of the form is that if the contractor promises to sell the independent sections that he has the right to claim against the land owner to third parties with the construction contract in exchange for the share of the land, this contract is based on the right arising from the contract made officially between the contractor and the land owner as a rule, since it is based on the right arising from the official contract between the contractor and the land owner, TBK 167. It has the conditions for the assignment of the receivable by virtue of the article and it is not obligatory to do it in a formal manner. However, if the contract between the contractor and the land owner is made contrary to the official form and is invalid, the land owner will now be able to assert this invalidity against the third party.
Another point is that the obligations arising from the construction contract in exchange for the flat subject to the official form will be valid if the obligations are changed later or the conditions are aggravated, again in the official way.
Consequences of Violation of Form in Construction Contracts for Flats
Consequences of non-compliance with the form in construction contracts for flats; TANGAROA. In accordance with Article 11/2, contracts made without complying with the form requirement specified in the law are invalid. However, when we look at the arguments in the doctrine, it is not an accurate view, although it is the view that such a form requirement can only be raised by the parties and their immediate successors. Because, unless otherwise regulated by law, the form requirement regulation is a mandatory regulation and the contract contrary to the legal regulation is invalid and at the same time the invalidity can be asserted by third parties other than the successors and the judge takes this issue into consideration ex officio.
There are cases in which the invalidity of construction contracts for flats will not be asserted. Although the contract will be invalid in case of non-compliance with the form requirement, the contract is deemed to be valid if it would be contrary to the rule of honesty to assert the invalidity of the contract in certain cases, which is accepted in the case law and doctrine of the Supreme Court. And the procedure for the obligation to perform the duties shall be applied exactly. For example; If the contractor has completed the construction and brought it to the stage of obtaining a settlement (building use permit), the land owner is no longer entitled to say "I refrain from performance" and the contract is invalid. Because, as we mentioned above, in accordance with Article 2 of the TMK, the law does not protect the claim of claim based on bad faith.
Again, when the contractor assigns the independent sections to which the contractor has the contractual claim right to third parties, the third party has the right to directly request the transfer of the independent sections that should be transferred to him in the deed in favor of the contractor by applying directly to the land owner. Again, when we look at the claim of invalidity in terms of the third party who is a party to the assignment contract, the same situation applies. In other words, just as the invalidity of the construction contracts for the flat, the invalidity of which cannot be claimed, cannot be claimed against the contractor, it cannot be asserted against the third party to whom the independent sections owned by the contractor are assigned.
When all the points we have described are taken into consideration, the fact that the claim of invalidity in the construction contract for a flat for which the form requirement has not been fulfilled constitutes a violation of the rule of honesty will differ according to the characteristics of each concrete case.
Contractor's Debts in the Construction Contract for Flats
Among the obligations undertaken by the contractor under the contract, the main act is the completion and complete delivery of the agreed individual sections. Since the completion and delivery of the construction within the time limit covers the legally protected interest of the land owner, the contractor's violation of the obligations in this regard is subject to legal sanction under the provisions of the debtor's default. Debtor default; it is the result of the failure to perform the essential act within the framework of the agreement between the parties. Here, the main act of the contractor is to complete the construction on time and completely and deliver it to the land owner. The completion of the construction within the agreed period is not sufficient by itself for the performance of the act. For the performance of the essential act, it must also be delivered in full. What is meant by complete here is that the contract is delivered in the agreed manner together with the technical conditions.
Thus, there are two essential acts for which the contractor is responsible for his performance; is the creation of a work and the delivery of this work in accordance with the technical specifications. However, in addition to these essential acts, the contractor also has ancillary debts, which are Article 471 of the TBK. titled Works contracts. By virtue of its article, it has an obligation of loyalty, a duty of care, the obligation to do the work itself or to have it done under its supervision, the obligation to provide tools and equipment, the obligation to provide security while constructing and many other ancillary acts.
Loyalty and Care of the Contractor
Since the contractor acts on the basis of the power of attorney given to him by the land owner while fulfilling the obligations under the contract, he must act with particular prudence and observe the legal interest of the land owner within the scope of the proxy relationship. If we can give an example of this issue, since it is not under the control of the land owner, especially the use of the material decided in the technical specification or if there are materials that the land owner must provide, if there is anything left over from the material provided, it is reported to the land owner within the period of time, the material to be used in the construction is stored and protected against external factors, the obligation to keep secrets, any factors that may cause delay in performance without delay there are many cases of notifying the land owner (business owner) etc., where the land owner has the right to expect the contractor to take care.
The Contractor's Obligation to Do the Work Himself or to Have It Done Under His Control
The contractor is under the obligation to have his cat personally do the work he undertakes. At the same time, if the contract between the contractor and the land owner contains a provision that the work will be built only by the contractor, the contrary action will constitute a violation of the obligation. and will give rise to indemnification liability on the part of the contractor. However, even if there is no such regulation, as a rule, the contractor is obliged to perform the work undertaken by himself since the personal skills and capacity of the contractor are accepted as presumed in such contracts. However, if the work is assessed on the merits of its nature, which is the court that will appreciate this point, then the contractor can establish a subcontractor relationship under his control. However, this work will not be completely independent of the subcontractor and will depend on the main contractor. Because the work (construction) must be built according to the provisions of the construction contract and technical specifications signed between the contractor and the land owner.
Obligation to Provide Tools and Equipment
The contractor is required to provide tools and materials suitable for the construction and construction characteristics undertaken by the contractor. For example, if we consider that the construction undertaken by the contractor is around 20 floors, it is necessary to arrange a moving crane for this and to have the appropriate equipment and to have qualified employees suitable for the construction process-form like many other situations.
As we have mentioned above, the contractor has a large number of side acts. And with these, different side debts can be imposed on the contractor under the contract; In the form of ancillary acts in the form of an obligation to pay a certain amount of rent to the owner of the land during the construction of the building or to give him a house to live in, side acts may be agreed upon in the form of a contractor.
Among the side acts of the contractor that we have enumerated, the violation of any of the elements that will not be included among the elements of the contractor's main acts, for example, the duty of care and loyalty, the obligation of secrecy, does not by itself give the owner the right to withdraw from the contract, but gives rise to the responsibility for compensation in favor of the land owner. However, if it is a side act and for example the non-payment of the rent money, if it is understood from the contract or the nature of the work that the contractor has to do the work personally and nevertheless the work is done by someone else, the land owner can exercise the right of withdrawal or termination from the contract if the obligation to provide tools and equipment contradicts the contractor's acts as elements of his main acts in the form of starting the construction on time.
Contractor's Default and Consequences in the Construction Contract for Land Share
Let us examine what kind of consequences arise if the contractor does not deliver the principal act to the land owner in the agreed manner and on time; It is necessary to examine separately the conditions of default in the substantive acts and in the ancillary acts.
Although the day of delivery has generally come, if the contractor defaults on the delivery of the agreed independent parts, the Code of Obligations shall comply with Articles 112-113 entitled Consequences of non-performance of debts. And 114. The clauses will be applied.
In the matter of the contractor finishing the construction and delivering the independent sections, the owner of the land can demand the same performance and compensation for delay. Again, if the owner of the land has given the contractor a period of time and has not informed that the construction should be completed and the delivery condition should be met within this period, otherwise he will give up the performance in kind, it is presumed that he has accepted the performance in kind.
Again, in construction contracts for land share, the penalty clause is necessarily decided in case of violation of the contract. A penalty clause is a right that arises immediately if the contractor delays in performing his obligation.
As explained in detail above, the fact that the contractor delivers the independent sections in question to the land owner, that is, an actual delivery does not mean that the contractor has fulfilled the contract (fulfilled my delivery obligation). Although in practice, according to most opinions, the presumption of fulfillment of the delivery debt is shown in our opinion; if we accept that the actual delivery constitutes a presumption that the contractor has performed the contract, the TCA. Art.2 will be grossly violated.
Let's not pass without mentioning the following point here; In general, it is decided in the contract how the delivery debt will be fulfilled. However, the presumption is that; is the delivery on the date of receipt of the settlement (building use permit). It means giving a settlement to a building; is that the structure has the features that it should have at a minimum level and for vital needs. The date of settlement is also agreed in the contract. If the penalty clause is agreed in the contract and the settlement after the agreed date will pay the penalty clause even if the owner of the land delivers the parts he should have in full.
Another point that needs to be mentioned here is Article 97 of the Constitution. In the event that the contractor defaults on the delivery of independent sections without performing his own act or in the event of his main step (delayed delivery), he cannot demand from the owner of the land the transfer of the agreed share of the land to him.
If the contractor declares that he will not proceed with the construction of the construction, he shall be entitled to Section 113 of the Constitution. By virtue of the clause, the owner of the land may finish the remainder of the construction on behalf and on behalf of the contractor and the owner of the land reserves the right to claim compensation for delay in the account of the delayed time.
Renouncement of Performance and Compensation of Positive Damage
If the contractor defaults on delivery despite the delivery date, the land owner may give a certain period of time to the contractor and after this period has passed, he may give up the performance and claim positive damages. One of the points to be considered here is BK. 124. It is the existence of situations in which the clause does not require the granting of time to the debtor. What are they; If there is a situation in which the debt is only performed for a certain period of time, a situation in which the performance can no longer benefit the land owner as a result of the default, or if the situation in which the contractor is no longer required to be given a period, the land owner may immediately give up the performance without giving time to the contractor and demand compensation for positive damages or withdraw from the contract. The point to be considered about positive damage; Construction contracts for land share are contracts that impose debts on both parties as we mentioned before, so the land share that must be transferred will be deducted from the positive loss since the land owner is also committed to the transfer of the land. TMK to make a malicious positive damage claim. It is not protected by law by virtue of Article 2.
Return from the Contract and Compensation of Negative Damages
The owner of the land plot can terminate the contract by renouncing the performance in kind when the contractor defaults. Again, due to the general conditions of default, it is necessary to give a suitable notice to the land owner. Bk 124. In cases where it is not necessary to give a period of time due to the article, the land owner may immediately renounce the performance and return from the contract.
In the event of a return from the contract, the parties will have the right to withdraw what they have given under the contract since the contractual effect (ex tunc) will end the contractual relationship. If the land is registered in the deed in the name of the contractor, the land owner will be able to take it back with the cancellation and registration of the deed. If the contractor has done some construction, the land owner will pay the contractor at the rate of enrichment, since the land owner will be enriched as a result of this.
Defective Construction with Construction Contract in Return for Land Share
In the contract concluded between the contractor and the owner of the land plot, the technical characteristics that the construction must have are agreed. However, if the construction is not delivered as agreed, the structure is considered to have been delivered defectively. The deficiency in the agreed technical conditions must be notified to the contractor in a timely manner.
Above the contractor's main act in counting the debts was the delivery of the work and the contractor here delivers the work, but the point to be noted is that the conditions of default do not occur. Only the work that is the subject of the main act is delivered contrary to the conditions agreed in the contract. Therefore, the law of obligations will not go to the default provisions, but to the provisions of the guarantee against defect.
The point to be considered here is that the technical conditions that the construction should have in the construction contract for the flat are decided and the construction is carried out accordingly. Of course, the contract does not need to enumerate all the special features that the contractor must do. For example, in the technical specification, the application is not written about the internal whitewashing of the independent section by the contractor, but if the contractor cannot deliver the work without doing them, he will deliver defectively. Even if nothing has been agreed, the contractor is obliged to construct a medium level of structure (building) suitable for the purpose of use foreseen in the contract. TANGAROA. When we look at Article 475, the rights of the owner of the work (land owner) in case the work is defective are enumerated.
So, how should the land owner behave if the work is defective?
In accordance with Article 474 of the UK, the owner is obliged to review the work as soon as possible in the ordinary course of work after the delivery of the work and to notify the contractor within an appropriate period of time if there are defects. In other words, the land owner must first fulfill the notification obligation. In order for the contractor to apply for the liability of the defect against the defect, the work must be inspected and the defective notice must be made. Otherwise, the contractor will not be held responsible except for hidden defects that the contractor deliberately hides. This notice must be made through a notary. Again, the owner of the land may duly apply for the conditions listed in Article 475 of the BK. according to the attitude of the contractor upon notification of the defective work to the contractor.
The obligation of the owner of the land plot to inspect the work delivered to him; The owner of the land plot is obliged to inspect after the delivery of independent sections to him. The owner of the land is obliged to start the inspection as soon as he has the opportunity after the delivery and to notify the contractor through a notary public if there is a deficiency, if any, within a reasonable time.
Land Owner's Rights Arising from Trust Against Defect (BK. 475)
The owner of the land is the TBK when the contractor delivers to him the independent sections defectively. He will be able to benefit from the conditions enumerated in Article 475. The owner of the land must first notify the contractor within the legal statute of limitations of the independent section delivered to him defectively. In other words, a defect can be reported here and he can use any of his optional rights. However, the fact that he did not reserve the right to claim compensation in the exercise of one of his optional rights here does not mean that he gave up his right to claim compensation. The optional rights of the owner of the land plot are:
When the contractor delivers the defective independent section to the land owner, the land owner has the right to withdraw from the contract if the work is so defective that it cannot be used or if there is a situation where it would be unfair to expect acceptance from the land owner.
In case of delivery of a defective independent section, the land owner has the right to make a discount to the price sufficient to eliminate the defect.
If the defect in question does not require an excessive expense, it has the right to remedy the said defect with a deduction from the price.
Again, one of the rights of the land owner in the liability of the contractor against the defect is the right to claim compensation according to the general provisions (BK Art.475/2). The point to be considered here is that the owner of the land is requested to compensate for the damages arising from the delivery of the defective independent section and which will not be remedied by the exercise of optional rights. For example, damage to the wall surrounding the land of the land owner while the contractor is constructing or another damage to the land owner by acting contrary to the obligation of care and attention while the contractor is constructing is included in this damage item.
Acceptance of the Work in the Construction Contract for Land Share
Acceptance of the work; Unlike the delivery of the work, it is a declaration of will that the owner of the land will not claim that the work done by the contractor is in accordance with the contract and will not claim defect. Acceptance; It is a declaration that has legal consequences by reaching the other party and is unilaterally implied or curative.
The declaration of acceptance may be compiled by registration of discretion. The point to be considered here is that if the defect is obvious, if the work is accepted, the contractor's responsibility cannot be taken. However, if the defect is confidential, that is, if it is not of the kind that can be revealed by rough control at the time of the first delivery, the fact that the acceptance declaration is made here will not relieve the contractor from responsibility. The owner of the land who notices such defects must fulfill the notification obligation without delay, otherwise the work will mean that it is accepted together with the defect.
Statute of Limitations for Rights Arising from Defects
The defect arising from the delivery of independent sections and the consequent right of claim and suit granted by law to the owner of the land are subject to a certain period of limitation in the doctrine and the Supreme Court practices also stipulate various statute of limitations because, as we have already stated, these contracts are mixed contracts and contain various rights in their type.
As a rule, the claim can be asserted by way of litigation within the statute of limitations of 5 years from the date of delivery of the defect, the subject of the act. In addition, if the defect is concealed by the fault of the contractor or if it is a defect that is difficult to reveal by a rough inspection at the time of delivery, it can be asserted by lawsuit within the statute of limitations of 10 years from the date of delivery. TBK on the interruption of the time-out period. the relevant provisions that break the statute of limitations shall be applied in the same way.
Real Estate Sales Promise in Construction Contracts for Flats
In the construction contracts for flats, the independent parts that must be transferred to the contractor are generally sold to third parties by the contractors with the Sales Promise Agreement. The point to be considered here is what will be the situation of the third party promised to sell in the event that the contractor does not fulfill his obligation and subsequently the owner of the land returns from the contract. As we mentioned in our article on sales promise contracts, when the contract of promise of sale is made, the contractor does not need to be the owner of the promised real estate, it is only enough to have it when the contract is executed. Therefore, if the owner of the land returns from the contract, the contractor will not be able to fulfill the provisions of the second contract, the contract of promise of sale, and the liability for compensation will arise due to the breach of commitment.
Title Deed Cancellation and Registration in the Construction Contract for Flats
Although the construction contracts for flats state that they include a promise of sale contract due to their nature, in case the contractor acts contrary to his commitment, the land owner may request the registration of the immovables falling under his share in his name by filing a title deed cancellation and registration case by using his rights arising from the sale promise contract against the contractor.
Construction of Additional Independent Section in the Construction Contract for Flats
In the event of any change in the zoning situation during the continuation of construction, an additional independent section can be made. The consideration here is how to share additional independent sections. If there is any agreement on this in the contract, which is usually stipulated by the parties and shared accordingly. However, if there is no such decision, the provisions of the contract must be interpreted. If there is no explicit provision in the contract and there is no explicit agreement, if an additional independent section is made, this section will be shared equally between the contractor and the land owner. Supreme Court 15th HD. 31/01/1994-2367/429 “... Since there is no contrary provision in the contract, it is essential to share the excess parts and there is no necessary reason to give the whole to the contractor."
Another point that should be mentioned is that in the event of a reduction or decrease in the size of the independent section due to the unsuitability of the zoning situation to create a construction as agreed in the contract, the proportion or number of independent sections that decrease or shrink due to the fact that this will not be burdened by the contractor alone will be divided in proportion to their shares agreed for the parties in the contract.
Technical Specifications and Obligations in the Construction Contract for Flats
In accordance with the contract made with the contractor and the land owners on the land, the decisions on how the construction will be carried out and the type of materials to be used in the construction of the construction constitute the technical specification that is the continuation of the contract. In the creation of the technical specification, it is absolutely necessary to consult the knowledge of an architect and a lawyer. Because most of the disputes we encounter are that the material used in the construction of the construction is not the material agreed in the contract or does not comply with the technical specifications. It is absolutely necessary to write down to the brand and make a clear decision about what kind of material will be used in the construction. For example; It will be more useful to make clear decisions such as first class material, A class material, luxury material or "x brand combi boiler will be used". Controls need to be carried out meticulously to ensure that the materials agreed upon during the construction phase are used.
Decisions of the Court of Cassation on the Construction Contract for Flats
Purchase of an Apartment from the Contractor or Land Owner in the Construction Contract in Return for Land Share
Counsel for the plaintiffs contended that the plaintiff land owners had signed a construction contract with the non-suit contractor in exchange for a share of the land, that the contract had been terminated retroactively by the court and the judgment had become final, and that the registration of the title deed belonging to the independent section registered in the name of the defendant, which had therefore become corrupt, was cancelled and its registration in the name of the plaintiffs. Counsel for the respondent sought dismissal of the suit on the ground that the respondent's client had acquired the independent part from the 3rd person.
The claim, defense and the entire scope of the file by the court; It was decided to dismiss the case on the grounds that the defendant did not receive the independent part from the contractor but received it from the 3rd person outside the case.
The decision was appealed by the plaintiffs' counsel.
Due to the construction contract for the share of land made between the land owner and the contractor, the floor altitude was arranged and one of the independent sections was transferred to the defendant.
The flat altitude deeds given to the contractor in accordance with the construction contract against the land share are in the nature of advances. If the contractor sells the independent sections to 3rd parties, these persons shall only be entitled when the contractor performs the duties against the land owner. In this case, since it cannot be said that the person who bought an independent section from a place under construction is in good faith, he cannot benefit from Article 1023 of the TCA in this sense.
In the concrete case, although the plaintiffs allege that the independent section was given an advance to the contractor, the defendant argues that he received it from the owner of the land. The Court did not investigate this issue. In this case, if the court makes the necessary enquiry and is of the opinion that the defendants have obtained the title deed from the owner of the land itself, it is not right to decide to dismiss the suit as it is now, otherwise it should be decided to dismiss the suit if the independent part was sold by the contractor to ..., which is the contractor of the defendant, but it is not right to decide on the basis of incomplete examination and erroneous grounds (Court of Cassation 23. Legal Department - Decision: 2019/5214).
Contractual Obligations of the Contractor and Business Owner
In the work contract, the contractor is obliged to do it with loyalty and care in accordance with the trust placed in him and to refrain from any behavior that will harm the owner of the work... and by failing to comply with the zoning rules relating to public order, without any other reason being sought (Court of Cassation 15. Legal Department-1999/115 decision).
As it is understood from the determination report that the work will not be completed within the period specified in the contract, it is a violation of the trust rule that the defendant starts work without a license and without a project. The rejection of the claims of the owners of the land whose termination is justified is contrary to the law (Court of Cassation 15. Decision of the Legal Department 1996/1261).
Unless otherwise agreed in the contract, the acquisition of a building permit rests with the owner of the land plot. Unless this obligation is fulfilled, it is incompatible with public order to ask the contractor to start work (Court of Cassation 15. Legal Department - 1993/1196).
After the delivery of the manufactured thing, the owner is obliged to have the thing inspected as soon as possible according to the course of the work and to notify the contractor if there are defects. After the explicit or implicit acceptance of what has been done, the contractor is relieved of all responsibility (Court of Cassation 15. Legal Department - decision 1982/2045).
Court in Charge of Construction Contract for Flats
The case concerns the claim for compensation based on the construction contract in exchange for a share of the land. In the justification of Article 3 of the Law No. 6502, no explanation has been given for the inclusion of work contracts within the scope of the law. However, when the systematics of the law are taken into consideration, you mean the work contracts mentioned in the law; It is understood that there are work contracts made between the real and legal person and the consumer for the purpose of using and consuming for commercial and non-professional purposes, solely for personal needs. Construction contracts in exchange for land share are a unique type of work contracts regulated in Articles 355 et seq. of the Turkish Code of Obligations No. 818 and 470 et seq. of the Turkish Code of Obligations No. 6098. One side of these contracts is the land owner and the other party is the contractor. In such contracts, it is clear that the owner of the land does not comply with the definition of consumer in Article 3/k of the Consumer Law.
The purpose of the construction contracts in exchange for the land share is to evaluate the land. For this reason, it should not be overlooked that the motive of the land owner when signing the construction contract in exchange for the land share is different from the motive of the consumer defined in the Law No. 6502. Considering that the work subject to construction contracts in exchange for land share requires high-level technology, and that there are immovable sales promises and construction contracts within the scope of the contract, it should be accepted that in the Law No. 6502, the legislator refers to narrow-scope work contracts such as kitchens, cabinets and vehicle repairs for the sole purpose of use and consumption, and that construction contracts for land share are not within this scope. In this case, while the dispute in the case at hand should not be resolved in the Consumer Courts according to Law No. 6502 but in the Court of First Instance according to the general provisions, it was not considered right to decide to reject the petition on the basis of duty on the erroneous grounds (Court of Cassation 23. Legal Department - Decision: 2016/2342).
Termination of the Contract and Conditions for Claiming Negative and Positive Damages
The case concerns the demand for the collection of the manufacturing price and loss of earnings due to the termination of the construction contract in exchange for the land share between the parties.
A "construction contract for a share of land", which is a type of work contract regulated in Articles 355 of the UK (470 et seq. of the TBK) in force as of the date of the suit, is a dual-type mixed contract that imposes a debt on both parties in which the contractor undertakes to produce a construction (construction) work in exchange for the undertaking of the owner to transfer or transfer a certain share of a plot of land as a price. Since construction contracts for land share include the obligation to transfer immovable property as a price, contracts that impose the obligation to transfer immovable property in accordance with Article 706 of the TCA, Article 213 of the UK, 26 of the Land Registry Law and 60 of the Notary Law, which are in force as of the date of the lawsuit, must be made formally. Pursuant to Article 11 of BK No. 818 (Article 12 of the TBK), contracts concluded without complying with the form ordered by law are invalid as a rule. In other words, the validity of construction contracts in exchange for land share depends on the fact that these contracts are made in the form of "arrangements" in the notary. However, as stated in the decision of the Joint Committee of the Court of Cassation on Case Law dated 30.09.1988 and numbered 1987/2 E., 1988/2 K., it would be contrary to the rules of good faith to assert the invalidity of the contract whose obligations have been fulfilled.
From the scope of the file, it is understood that a construction contract was signed between the parties in exchange for the ordinary written land share dated 10.06.1999, that a transfer was made in the deed by establishing a floor elevation on 01.09.2000, that some independent sections were transferred in the deed by the power of attorneys given to the partners of the plaintiff contractor company by the defendant land owner and that the contract is no longer valid since the obligations of the contract are fulfilled by way of transfer of deed.
On the other hand, since construction contracts for land share are mixed contracts consisting of work and sales promise contracts and include the promise of sale (transfer of land share), it is not possible to terminate them with a unilateral declaration of will. In the determined jurisprudence of our Chamber, it is accepted that such contracts will end with the termination decision of the court in case of the unification of the will of the parties or in case of justifiable reasons. Therefore, the party who wants to withdraw from these contracts, if the other party does not accept and opposes the return, needs the judge's decision, that is, he can return from the contract with the decision of termination (return) at the end of the "termination of the contract" case to be filed in court. The court first discusses whether the person seeking termination is justified; If he is right, he decides on termination, otherwise he dismisses the case and keeps the contract in force. In other words, the termination of construction contracts in exchange for the transfer of land share is only possible with a court decision unless the wills of the parties are united in the termination.
In the present case, although the contract was terminated by the respondent landowner by the notice dated 21.03.2002, the reply notice dated 29.07.2002 issued by the plaintiff contractor did not expressly state that the termination was adopted and the demands for performance were made. It must be admitted by the plaintiff contractor that in the suit petition, the cost of the fabrications he has made is not sought to be lost, the survival of the contract is not wanted, the termination is adopted, in other words, the will of the parties as of the date of the suit is united in the direction of termination.
Unless otherwise agreed in the contract, the party who has rightfully renounced the contract may only claim adverse damages from the party who was at fault for the default under Article 108 of the UK, which was in force as of the date of the suit. Indeed, according to Article 108/II of the UK, "If the debtor cannot prove that no fault can be attributed to him, the creditor may also demand compensation for the fiduciary damage for the invalidity of the contract." On the basis of the last sentence of the second paragraph of Article 106 of the UK, upon withdrawal from the contract due to debtor resistance, the parties are relieved of the obligation to perform under Article 108/I of the UK and may demand back the acts they have previously performed. However, in addition to the frustration of the party who has concluded a contract by relying on the other person and who is in a right position, the non-fulfillment of this contract by the other party, there is also an active decrease in his assets. This decrease in action is called negative interesse. The legal basis for compensation for this damage is set out in the second paragraph of the same article (BK art. 108/II).
Negative harm; is the actual loss suffered due to the futility of the trust that the contract will be fulfilled by the other party. In other words, it is the damage that would not have been suffered if the contract had not been made. Thus, whether it enters the counterparty's assets or not, it is the money that comes out of the creditor's pocket (assets) due to the contract and is legally spent. According to the prevailing view in the doctrine and the practice of the Supreme Court, the harm caused here is negative (negative) damage. Negative harm is generally the damage arising from believing (trusting) that a debt relationship that is not legally valid is valid. In short, this loss is the damage that the creditor suffered because he made a contract, which he would not have suffered if he had not made a contract
In other words, all of the expenses (expenses) made by relying on the contract are the money that comes out of the pocket due to that contract, even if it does not enter the assets of the other party. Positive damage is the damage caused by the non-entry of the money that should have entered the pocket due to the contract. By this nature, positive harm is always forward-looking and a loss of expectation. In other words, positive damage can also be defined as damage arising from the non-performance of the contract at all or as required. Loss of rental income expected to be brought if the buildings are completed, penalty due to performance due to delayed performance (BK 158/II), optional penalty (BK 158/I), cost of missing works, loss of profit, compensation for delay (BK 106/2) positive loss; The rent to be paid for the house to be inhabited during the construction of the construction and the claims for the debris cost of the demolished building are among the receivables within the scope of negative (negative) damage. Negative damage is the damage that the creditor who returns from the contract can claim from the defective debtor if he is right, in other words, the damage that arises due to the fact that the contract does not make provision due to the debtor acting contrary to the contract. The party who requests the termination of the contract and is justified in the termination has the right to claim negative damage in accordance with Article 108/2 of the UK.
Positive loss is the subject of the compensation that the party who is completely justified can claim from the party who returns from the contract completely unjustly, and the profit deprivation remaining within the scope of positive loss is not one of the receivables that the party returning from the contract can claim even if it is completely justified. In the compensation of positive damage, which is another consequence of the withdrawal from the contract; the person seeking compensation must not be both a party to the contract and not at fault; on the contrary, the other person must be both the party who has renounced the contract and the defective person in the return. The (plaintiff) party who rightfully renounces the contract can only claim negative damages from the (defendant) party who is completely at fault for resisting. If both parties are at fault, they cannot claim compensation for positive or negative damage; they can only demand the return of the useful things they have brought to each other, according to the rules of gratuitous enrichment. Since the basic condition for the emergence of a debt of compensation is "defect", the party seeking compensation must be "defective". It doesn't matter if one side is "less defective" and the other side is "very imperfect." The less culpable party cannot also claim compensation as it is deemed to have caused the breakdown of the contract by his fault. In such cases, since the termination will have been caused by the "common fault" of the parties, compensation cannot be demanded and the contract must be liquidated. The purpose of liquidation is to get rid of the effect of the contract of the parties, to return them to their state at the time of conclusion of the contract. Thus, the parties will be able to request the return of the values they have added to each other's assets due to the contract. If the debtor does not want to pay the negative damage claimed by the creditor, he has to prove that he was not at fault for the resistance (default). Otherwise, you will be liable for damages. This is because the legislator has accepted as a presumption that the debtor is at fault under the said Article 108/2. This presumption is in favor of the creditor; the creditor does not have to prove that the debtor was at fault; he just needs to prove his own harm and the amount of it.
In the petition, it was requested to collect TL 200,000.00 with interest for the manufacturing price and loss of profit for the time being and no explanation was received by the court from the plaintiff as to how much of this amount was loss of profit and how much was manufacturing price.
In this case, it was not correct for the court to make a judgment in writing when it should have been held that the plaintiff should have been informed as to what amount of his claim was a profit conviction and what amount was the cost of manufacture and that the plaintiff contractor had declared his will to terminate the contract in the suit petition and could not claim loss of profit in the nature of positive loss on account of his renunciation of the contract.
On the other hand, in the event of termination of the contract, the parties can demand what they have given to each other, based on the provisions of unjust enrichment. Article 61/2 of BK No. 818 (Article 77 of the TBK) states that this rule "... Unreliable... for some reason, what has been done must be returned." Here, although the cause of debt has not been realized, there is an enrichment in the assets of the business owner and a decrease in the assets of the contractor. However, in order to speak of a multiplication of the owner's assets, the work done must be of use to him.
In the original case, it was argued by the defendant land owner that the construction was contrary to the contract and the project and the court ruled that the sum of the separately determined values of the independent sections in the blocks determined by the experts was accepted as the manufacturing price without any examination of the compliance of the construction with the zoning legislation.
In this case, the court shall ask the relevant Municipality whether the construction is contrary to the project, the zoning, whether it will be eliminated by the renovation project if there is a contradiction to the project, the procedures to be taken if it is possible to eliminate it and the costs thereof, to inspect these issues by making a discovery and taking a report from the expert board, to ensure that the construction made by the contractor is contrary to the project and that it is not possible to eliminate the contradictions with the renovation project, that is, the manufacturing is not if it is determined that it is not in the interest of the owner, the rejection of the claim for the manufacturing price, if it is determined that the construction is not contrary to the project or that it is possible to correct the inconsistencies with the renovation project, the price of the productions made by the contractor shall be determined according to the local market fairs with the date of the lawsuit in which the wills of the parties to the termination are combined, and the remaining part of this price shall be deducted from the cost of eliminating the non-compliance with the project and the license, if any. While the amount of the claim should have been taken into consideration and taken into consideration, it was not correct to make a judgment based on incomplete examination and erroneous justification by taking the expert report explaining that it made the calculation according to the local fair prices despite the calculation according to the public works unit prices in written form. (Court of Cassation 23. Legal Department - Decision No:2016/1340).
Terms and Consequences of Future or Reverse Termination of the Agreement
The consequences of retroactive termination of the construction contract for land share and prospective termination are different. After the termination of the contractual relationship, the parties must be relieved of the obligations of the contract, in other words, the contractual relationship must be liquidated. In the case of retroactive termination, the creditor may demand the return of the title deeds he has given to the contractor or his successors on the basis of Article 108/I of BK No. 818 (TCC 125.md.) in force on the date of the case. The most important consequence of retroactive termination is that the parties are brought back to the assets on the date of the contract. This means that the parties return to the assets on the date of the contract as if no contract had been made. To put it briefly, in retroactive termination, the contractor is not given an independent section appropriate to the physical condition of the construction on the date of termination. If the will of the parties does not agree that the termination will be retroactive, the court should investigate whether the conditions of the termination with effect for the future have been fulfilled. If the termination has been made in such a way as to create prospective results or if the conditions for this have been created, the contractor may request the transfer of the independent section deed appropriate to the physical level to which the work was brought in the liquidation process to be carried out as a natural consequence of the termination. In the event that the termination is retroactive, the parties can take back what they have mutually given to each other under the provisions of unjust enrichment, since the contract will be deemed to have never been made (non-existent). For example, if an advance amount of land share has been transferred, the registration of the land share in the name of the land owner in accordance with the law if a part of the production has been realized in accordance with the law, the cost of this may also be requested by the contractor party. Whereas, in the case of prospective termination, the result is different. Here, the land owner is obliged to transfer the share of the land in the proportion of the construction carried out by the contractor, but may also demand the payment of the damages suffered due to the fault of the contractor. In other words, prospective termination means that the contractor receives compensation according to the proportion of the production he has made (Court of Cassation 23. Legal Department - Decision: 2019/1170).
By the decision of the Grand General Assembly of the Supreme Court of Appeals dated 25.01.1984 dated 1983/3 Esas, 1984/1 Decision, it was held that in the case of termination of the contract by the owner of the contract due to the fact that the contractor defaulted by not completing the work within a certain time due to his own fault in the construction contracts for flats, which are a type of exception (work) contracts, the dispute would have to be resolved as a rule within the framework of the provisions of Articles 106-108 of the Code of Obligations, but the nature and character of the incident were justified In such cases, it was decided that the contract would have a prospective effect by observing the provision of Article 2 of the Civil Code. Here, it is useful to focus on the consequences of the retrospective and prospective effect of the termination. As it is known, termination is a right to terminate the contractual relationship, which gives rise to disruptive innovation. In the event that the termination is retroactive, the parties may take back what they have mutually given to each other under the provisions of unjust enrichment, since the contract will be deemed to have never been made (non-existent). For example; If an advance amount of land share has been transferred, it may be requested by the land owner, and if a part of the production in accordance with the law has been realized, the contractor may also request the cost of this by the contractor party. However, in the case of prospective termination, the result is different. Here, the land owner is obliged to transfer the share of the land in the proportion of the construction carried out by the contractor, but also demands the payment of the damages suffered due to the fault of the contractor. However, both in our Department and in the Decisions of the General Assembly of Law, the construction level must have reached 90% or more in order for the contract to be terminated with effect going forward. For this, it is necessary to determine the physical condition of the construction on the date when the contractor withdraws from the work and to determine the ratio of the work done to the whole work. Thus, the nature of the work should be evaluated together with the scope of the work and it should be emphasized whether the termination will have prospective or retroactive consequences. In cases where it is necessary to decide on the acceptance of the request for future effective termination, it cannot be said that the dispute has been resolved since being satisfied with only the prospective termination will cause new lawsuits. Moreover, the determination of the share of land to be left to the owners of the land and the share to be left to the owners of the land will meet the lawsuits and offset demands of the parties and the provision with the ability to execute will be established. In this case, although the level of realization of the construction by the court was 77.50%, the conditions for the prospective termination of the contract were not created due to the fact that the level of the construction of the building filed by the land owner requesting the prospective termination of the construction contract for the flat was not carried out at the rate specified in the decision of the Grand General Assembly of the Supreme Court of Appeals dated 25.01.1984 and Decision No. 1983/3 and 1984/1, but our Department dated 07.04.2004 Decision No. 2003/4795 and 2004/1968 Decision No. As stated in the notice, in cases where the plaintiff land owner who can claim retroactive termination of the contract voluntarily requests the prospective termination of the contract, regardless of the degree of realization of the production, the contract will be terminated with effect for the future, the liquidation of the contract and the compensation for delay if the conditions have been fulfilled from the date of delivery to the date on which the effective termination is requested, and the determination of the independent sections belonging to him will be left to the owner of the land as he may demand the determination of the independent sections belonging to him While it was necessary to decide on the determination of the sections, the rejection of the case with the wrong assessment and incomplete examination was not correct and the decision was found appropriate to be overturned (15th Civil Chamber of the Court of Cassation - Decision No: 2019/3227).
Court in Charge of Title Deed Cancellation and Registration Case of Apartment Buyers from Contractor
The case concerns the cancellation of the title deed based on the assignment of the contractor and the request for compensation if the registration is not accepted. Counsel for the plaintiff contended that his client was the non-suit landowner and the non-suit E. Ö. ( E... R... Ş... Construction ) claimed that the independent section, which was decided to be left to the contractor in accordance with the construction contract in exchange for the share of land arranged between the construction, received the assignment from the defendant contractor E. Ö. and sought compensation if it was not possible to register the independent section in the name of his client with the cancellation of the title deed registration.
The Law No. 6502 on the Protection of Consumers, which entered into force on 28.05.2014, covers all kinds of consumer transactions and consumer-oriented applications. Housing sales contracts, timeshare and long-term holiday service contracts are also included in the scope of the law. This lawsuit was filed stating that the property in question was also purchased under a housing sales contract. According to the definition in subparagraph (k) of Article 3 of the said law, the consumer; a natural or legal person acting for commercial or non-professional purposes, and a consumer transaction according to the definition in subparagraph (l); It refers to all kinds of contracts and legal transactions, including works, transportation, brokerage, insurance, power of attorney, banking and similar contracts, established between consumers and real or legal persons acting for commercial or professional purposes, including public legal entities in the goods or services markets, or acting on behalf of or on behalf of it. In accordance with Article 73 (1) of the Law No. 6502 on the Protection of Consumers, all disputes that may arise regarding the application of this law must be heard in consumer courts. In addition, it is necessary to recognize that in such cases there is a mandatory litigation between the owners of the land plot and the contractor. Therefore, the examination and research must be carried out in a case in which the contractor and all land owners are also parties. In this case, the court should give the plaintiff a notice to file a lawsuit against the contractor and the land owner, who are the parties to the construction contract in exchange for a share of the land, and if so, that case should be combined with the case file being heard, the defense and evidence of the contractor and the land owner should be collected, and a decision should be made on the claims of the plaintiff by determining in particular whether the contractor has fulfilled his duties under the construction contract.
In the concrete case; Since the plaintiff consumer has requested cancellation and registration of the title deed based on the assignment of the contractor, if there is a separate consumer court in that place, it is an obligation arising from the law that the dispute should be heard in the consumer court, otherwise the case should be treated as a consumer court. While the Court should have acted ex officio in the manner stated above by observing the issue of duty from public order and ensuring the full formation of the parties, it was not considered right to examine and adjudicate the merits of the contention without taking these matters into consideration, and therefore the decision had to be overturned (Court of Cassation 14. Legal Department - Decision: 2016/3869).
Failure of the Contractor to Perform the Act and the Status of the Contractor-Independent Section Assignees
The suit relates to the demand for cancellation and registration of title deeds based on personal rights due to the assignment of the independent part decided to be left to the contractor under the contract of promise of sale of real estate, which was decided to be left to the contractor in accordance with the construction contract for flats arranged between the land owners and the contractor, and the decision of the local court to accept the case was appealed by some of the defendants' counsel.
The construction contract in exchange for land share, which is a type of work contracts, imposes mutual rights and obligations on the parties. The contractor undertakes the construction of a building on the real estate of the land owner by providing financing, while the owner of the land promises to transfer the ownership of some independent sections in this building to the contractor in exchange for the building to be built.
Since there is no regulation in our laws regarding the title deed cancellation and registration cases filed on the basis of the assignment of an independent section from the contractor pursuant to the construction contract concluded between the land owner and the contractor, the Court of Cassation Decision No. 1987/2, 1988/2 dated 30.09.1988 applied in the settlement of disputes in these matters and the decision of the Supreme Court of Appeals (IBBCC) which is applied in the settlement of these matters is "Since the transfer of the ownership of an immovable registered in the deed is not made in accordance with the conditions of the form stipulated by the law and which gives rise to a debt to transfer the ownership of an immovable property registered in the deed, but it is not done in accordance with the conditions of the form stipulated by the law. that a suit for forcible registration filed on the basis of an invalid contract cannot be accepted as a rule, however, in the absence of a valid contract for the sale of an independent section of the immovable property under construction subject to the Condominium Law, the parties agree on the sale of the independent section and the buyer pays all the debts of the buyer and the seller does not accept the transfer of the ownership in the deed despite the fact that the buyer uses it as the owner by delivering the independent part; according to the nature of the case, the registration case filed in accordance with Article 2 of the Civil Code can be accepted".
In the event of the purchase of an independent section from the buildings in which the contractor is constructing in exchange for a share of the land or which the owner of the land is also constructing as a contractor (in the position of a builder), it is sufficient that the assignment to be made to the third party in accordance with Article 184 of the Turkish Code of Obligations is in writing.
In such cases, it is obligatory for the court to first clarify whether the contractor has fulfilled his obligation (the obligation to create and deliver the work) and then whether he has fulfilled his other obligations such as the settlement condition (residence permit) etc. in the provisions of the contract. For this reason, it is necessary to examine and evaluate within the framework of the provisions of the contract whether the assignment transaction subject to the lawsuit is valid or not, and what the debts of the contractor are in accordance with the construction contract for the land share arranged between the land owner and the contractor.
If the plaintiff receives from the contractor the independent section agreed to be left to the contractor in accordance with the construction contract for the share of land arranged between the land owner and the contractor, certain conditions must exist in order to force the land owner to perform. In accordance with Article 188 of the Turkish Code of Obligations; "The debtor may assert against the transferee the same defenses against the transferee that he had against the transferor when he learned of the transfer." Accordingly, the landowner who learns of the assignment can assert the same defects against the new creditor (the assignee plaintiff) as he could have asserted against the previous creditor (contractor) if there had been no assignment. Since the subject matter of the assignment will be whatever the actual receivable to which the contractor is entitled under the contract with the land owner, it is of no importance for the land owner that the assigning contractor assigns the right that he has not earned from the land owner to the third party. On the other hand, if the contractor has assigned to the third party (the plaintiff) the personal right that he will acquire without fully or partially fulfilling his obligation against the land owner, the third person (the plaintiff) cannot force the land owner who has the right to benefit from the provision of Article 97 of the Turkish Code of Obligations to perform.
In the concrete case; The dispute centers on whether the contractor has performed his duty and, therefore, whether the plaintiff, who is the successor of the contractor, can make a claim in respect of the suit property.
Although the gradual transfer is stipulated in Article 3 of the construction contract for flats dated 11.01.1996 signed between the land owners and the contractor, it is decided in Article 3/d that the title deed of the remaining shop and an apartment and the entire share belonging to the contractor will be transferred after the construction is completed and the independent sections belonging to the land owners are delivered on a turnkey basis and the floor altitude is made and the settlement is obtained, The defendant contractor has been transferred the independent sections shown in paragraphs 3/a,b,c of the contract and will be entitled to the immovable property subject to the lawsuit upon the completion of the construction and the receipt of the building use permit, since the building registration certificate obtained in accordance with the provisional article 16 of the Zoning Law No. 3194 will not replace the building use permit, this obligation cannot be accepted as fulfilled, an additional report is obtained from the expert committee whose reports are taken as the basis of the judgment by the court, After examining this issue by investigating it from the relevant municipality, if necessary, the plaintiff should be given a reasonable time and authority to obtain a building use permit, and if a building use permit certificate is obtained, the title deed should be decided and the registration should be decided, and if it is not possible, the deed should be rejected (Court of Cassation 15. Legal Department - Decision: 2020/3124).
Even if it is not written in the Construction Contract for Flats, the Land Owner Can Request a Fair Rent in case of delay
It is not in dispute that the construction contract for flats was formally executed between the parties dated 21.09.2004 and in this contract it is stated that the plaintiff was given two apartments of 175 m2 each in the building to be constructed on the land belonging to the plaintiff, in Article 2 it is accepted that the contract will be considered invalid if the construction is not completed within two years and in Article 6 the construction will be completed within 42 months after the necessary powers of attorney are given by all the land owners, Article 11 states that the party who does not comply with the contract will be it is understood that it is agreed that the party will pay the damages. Again, it is seen that in the supplementary agreement dated 28.11.2007 drawn up between the parties, it was agreed that the plaintiff would be given 3 flats and that rent would be paid to the landowner from 15.06.2006 and in the ordinary contract dated 30.02.2008, it was agreed to pay rent of 2000 Euros from 15.06.2007 and 2500 Euros after the foundation was laid. As the Court has admitted, the ordinary contracts dated 28.11.2007 and 30.02.2008 concluded between the parties are of a nature that aggravates the situation of the parties and imposes new debts in accordance with the acts agreed in the official flat construction contract dated 21.09.2004 and is invalid because it is done in an ordinary manner when it is required to be done in an official manner. However, it is possible for the plaintiff landlord to claim compensation for delay at least at the monthly fair rent level, even if the compensation for delay is not specified in the official contract. Therefore, it was not correct for the court to decide to reject the claim for compensation in its entirety while it should have been investigated and determined the date on which the construction should have been completed in accordance with the contract dated 21.09.2004 in respect of the independent sections which the plaintiff claimed had been delivered to him late, and the fair rent amounts, if any, up to the date of receipt of the plaintiff should have been calculated by means of a supplementary report from the experts and the claim should have been decided on the condition that they were bound by the demand (Court of Cassation 15. Legal Department-K.2020/538).
Performing Permit Conditions and Procedure
The case for permission to perform Nama is regulated in Article 113 of the TBK No. 6098. If the obligation to perform in accordance with the provision of this article is not performed by the debtor (contractor in the work contract) within the time limit, the creditor (the owner of the work in the work contract) may request that the unperformed or incomplete act be allowed to be completed by him or someone else at the debtor's expense. In order for this clause to be applicable, the contractor must be deemed to have failed to fulfill his obligation in contravention of the provisions of the contract and must be in default in this regard. According to the scope of the file, it is seen that the defendant contractors did not finish the construction within the agreed time, that there were a number of deficient and defective manufacturing in the independent sections and common places belonging to the plaintiff, that the contractor was thus in default and that the plaintiff was justified in requesting permission to complete the remaining part of the construction at the expense of the defendant contractor. In cases where a request for permission to perform is made, the owner of the land may request that the incomplete and defective works in the independent sections belonging to him and the incomplete and defective works in the common areas be commissioned by him for the completion of the performance permit and the collection of the advance fee for their remedy.
When the concrete event is evaluated within the framework of these narratives; In the court of first instance, it was decided that the part of the incomplete and defective works in the common areas falling to the plaintiff's share of the land and the cost of the deficient and defective works in the independent sections belonging to the plaintiffs should be collected as an advance within the scope of the permission to perform on behalf of the plaintiffs. The District Court, on the other hand, accepted some of the appeals of the counsel for the plaintiff and ordered the collection of the entire amount of the remedy for the deficient and defective works in the common areas and the cost of the remedy in all independent sections, including the deficient and defective works in the independent sections belonging to the contractor. Since the land owners can only demand the cost of the removal of the deficient and defective works in the independent sections belonging to them, it was wrong to make provision to cover the cost of the removal of the deficient and defective works in the independent sections belonging to the contractor.
In this case, the work to be done by the District Magistrate Court is; if necessary, obtaining an additional report from the expert committee that issued the report in the court of first instance, as of the date of issuance of the additional report, the plaintiff may request permission to perform on behalf of the plaintiff, determining what are the deficiencies and defective works in the independent sections and common areas falling to him, and having the cost of their advance expenses calculated and deciding in accordance with the result (Court of Cassation 15. Legal Department - Decision: 2020/2026).
Since the construction contract for flats is a two-sided real estate law contract that brings various rights and obligations to both the contractor and the land owner, it is useful to defend through a real estate lawyer in case of dispute.