What Is an Action for Cancellation and Registration of Title?

In short

An action for cancellation and registration of title aims to correct the wrongful record on the register. The check before the transfer does not stand in for this action. The checklist is in a separate article.

The basis may be lack of capacity, collusion, or a disposition without consent. A mixed cause weakens the action.

Collusion by the deceased is a special cluster.

The land-registry directorate does not strike off every wrongfulness without a court judgment.

Related articles: the spouse's consent.

What is an action for cancellation and registration of title?

An action for cancellation and registration of title is the route of asking, with an allegation that the record appearing on the register is contrary to law, that this record be struck off and that the correct right holder be registered. The action comes onto the agenda when the "official appearance on paper" of the title and the real state of the right contradict. A request for cancellation alone may leave the register empty or incomplete. For this reason, in practice, cancellation and registration are most often asked for together.

This article is not an extended version of the article the check before a transfer of title. That text is a preventive list that scans the encumbrance, the mortgage, the attachment, and the power of attorney before the purchase is yet made. The question here is this: if the record has already been formed, how is the register corrected?

The text is for general information. The period, good faith, and the cadastral exceptions change according to the concrete event and to the current legislation. A promise of a definite cancellation cannot be given.

A wrongful registration, and good faith

A wrongful registration is a record that does not rest on a real legal cause, or that rests on a defective cause. A forged identity, a forged power of attorney, a seller without capacity, a collusive transaction, or unauthorised representation are typical examples. Although the proceeding of the land-registry directorate appears official, if there is no cause the record may be debated as wrongful.

The Turkish Civil Code protects reliance on the land registry. A third person who acquired a right in rem in good faith and with the conditions in the statute is protected in some files. This protection does not turn every wrongfulness into a state of "it is no longer spoken of". An annotation on the register, an extraordinary price, a transfer within the family, and a suspicion about the power of attorney may weaken the allegation of good faith. The claimant should map from the start every transfer in the chain, and the capacity of the defendants.

Good faith does not consist of a sentence of "I looked at the photocopy of the title". The moment of the acquisition, the price, the relation, and the restrictions appearing on the record are read together.

Disputes arising from the cadastre

The cadastre is a regime of collective determination. The record of determination, the announcement, and the record of the owner form the backbone of the later title. By contrast, not every cadastral determination is undisputable to infinity. The routes of action and the periods in the cadastral legislation may have a forfeiting character. A number of days is not fixed from memory in this article; the date of the determination, the announcement, and the current text of the article should be checked.

A shift of the boundary, the surface area, and the determination of the owner are separate types of allegation. A technical expert, a map, and an examination of the ground are unavoidable in most files. A wrongful sale made after the cadastre may give birth to an action for cancellation and registration separate from the determination itself. Mixing the two facts in a single sentence diverts the calculation of jurisdiction and of the period.

The proceedings of the cadastre and of the land-registry directorate in Ankara are bound to the national statute. The tempo of the local archive affects the collection of evidence; it does not change the elements.

Its difference from the check before a transfer of title

The preventive check warns the buyer, before the price is yet paid, against the risk of an attachment, a mortgage, a measure, planning, and a power of attorney. The action corrects the register after the record has been formed. The first is a checklist, the second is a contested trial. The two articles do not answer the same question.

An action for cancellation may still be opened in an immovable taken without the check being made. The defendant's defence of good faith, or the claimant's own fault, is debated in the concrete fact, however. A regret of "if only I had scanned the title in advance" does not by itself build the legal cause of the petition; the documents build it.

Collusion by the deceased is the intersection of inheritance law and the immovable register. A disposition of the person leaving the inheritance, shown as a sale, most often gives birth to a request for cancellation and for registration to the estate. The detailed indications of collusion are worked in the article collusion by the deceased. This article does not repeat that article; it tells the general form of the register action.

How does the process of the action work?

1. The title record, the journal, the supporting document, and the chain of transfers are drawn out.
2. The characterisation of the legal cause is made: wrongfulness, lack of capacity, collusion, the cadastre, a forged power of attorney.
3. The third person in good faith and the later co-owners are mapped; the list of defendants is built according to this.
4. The period and the jurisdiction are checked; the cadastre and the general action for cancellation are not mixed. The periods may be forfeiting.
5. The evidence is collected: the original of the power of attorney, the signature, a report of capacity, the certificate of heirship, the map, the witness.
6. In the petition, the requests for cancellation and for registration are written with the block and parcel and the share ratio.
7. An interim measure and an annotation on the title are assessed in order to cut a new transfer during the trial.
8. After the decision, the registration, the proceeding of the land-registry directorate, and the relations of a third person if there are any, are followed.

The competent court is, in most files, the civil court of first instance of the place where the immovable is. In cadastral disputes the jurisdiction may differ. In immovables in Ankara, competence is determined with the district and the parcel on the record.

Clarity in the petition

A sentence of "let the title be cancelled" does not say in whose name which share will be registered. Co-ownership, devolution, and registration to the estate should be written separately. A wrong chain of owners gives birth to a debate on amendment and on the period.

Where the record of cancellation of title is read

The chain of title, the power of attorney, and the cause of registration are read side by side. A real-estate lawyer does not write into this text a limitation year that does not stand in the file. The office address does not choose the competent authority. A real-estate lawyer does not put the check before the transfer in the place of this action. A real-estate lawyer reads the cause of registration with the power of attorney. The frame is read with the register record in the file of the Turkish Civil Code No. 4721.

• Ignoring the annotation on the register
• Opening the action only against the last owner and skipping the intermediate transfers
• Mixing the cadastral period with general limitation
• Lengthening the trial without taking a measure
• Squeezing collusion by the deceased and a forged power of attorney into the same characterisation
• Taking the preventive sale list as the petition

The page immovable-property law carries both the preventive title check and the register actions. This article is the route of correction after the dispute.

The period, possession, and the chain of transfers

In an action for cancellation of title, the period may change according to the legal cause. In allegations bound to a cadastral determination, forfeiting periods may come onto the agenda. In a later wrongful sale, the debate on limitation or on forfeiture is read separately. A number of days from memory is not fixed in this article. The date of the determination, the announcement, the learning, and the current text of the article should be checked together. When the period is missed, the merits may not be able to be spoken.

Possession (practical control) and ownership on the title are not always gathered in the same person. Long-lasting possession opens a separate debate on acquisition in some files; this is not an automatic alternative of the action for a wrongful registration. In the petition, the fact of possession and the request about the register should not be mixed. An inspection and a witness show the use of the ground; the correction of the register still happens with the judgment of registration.

The chain of transfers lengthens the list of defendants. If there is a third person who bought in good faith after the first wrongful transaction, how far the cancellation will go is bound to the conditions of protection in the statute. Skipping the intermediate owners may give birth to a lack of parties in the action. If the heirs open the action before devolution to the estate, the certificate of heirship and the capacity under inheritance law should be made clear from the start. If there is an allegation of collusion by the deceased, the basis and the proof are worked separately in that article.

In a chain of a forged power of attorney, the responsibility of the notary, of the land-registry official, and of the third person may be subject to different regimes. This article is not a handbook of an action for compensation; it tells the backbone of the correction of the register. The evidence, however, should still be collected early: the original of the power of attorney, the examination of the signature, and the journal record. The loss of the document makes the expert harder years later.

The measure, the annotation, and the proceeding after registration

An interim measure and an annotation on the title are useful for cutting a new transfer while the trial continues. The measure is not given in every file. The ground is an appearance of being justified, a loss hard to remedy, and sometimes security. An action left without an annotation may open a door to the defendant disposing of the immovable. A debate on the good faith of the new owner makes the action harder in practice.

If an attachment or a mortgage stands on the register, the cancellation decision may not strike off these encumbrances automatically. The order of the creditors, and the condition of release, are read separately. Registration should not be expected from the land-registry directorate before the decision becomes final. The judgment of cancellation and of registration that has become final is entered on the register with the journal. In co-ownership, which share will be written in whose name should be clear in the operative part of the judgment.

In immovables in Ankara, the competent court is determined with the district and the block and parcel on the record. The proceeding of the Çankaya land-registry directorate is bound to the national Civil Code and to the land-registry legislation. The tempo of the local archive affects the collection of evidence; it does not change the elements of good faith and of wrongfulness. The list of the check before a transfer of title is operated again on a later sale even if the action is won. When the register is corrected, the risk is not counted as finished; the new transaction still scans the encumbrance.

In files of a forged identity or of a forged power of attorney, a criminal investigation may run separately. The criminal file is not the automatic result of the civil action; the document and the statement may be evidence in the register action, however. A decision to wait (the civil action waiting for the criminal file) is not obligatory in every event. The strategy is built according to the strength of the concrete document. This article is not a guide to criminal law.

The matrimonial-property regime between the spouses, and the title record, may also intersect with cancellation and registration. In the regime of participation in acquired property, the statutory claim right does not always mean cancellation of the title. A family-law claim and an action for a wrongful registration should not be mixed. The concealment of an inheritance share is closer to an allegation of collusion by the deceased.

A technical error on the cadastral record, and a defect of will in the later sale, are not the same construction of a petition. The first is the map and the ground; the second is capacity, collusion, or a forged document. The competent court and the period are separated from the start for this reason. An approach of "the title is wrong, write all of it" scatters the file.

If the block, the parcel, the independent-section number, and the share ratio are not written in the operative part of the judgment, the land-registry directorate may turn the registration back. While it stands as if the action was won, the register proceeding gets stuck. For this reason the result of the request should be built with the technical identity of the title.

In co-ownership, some co-owners not joining the action makes the entering of the judgment on the register harder. The constitution of the parties is as important as the technical parcel. If there is death and devolution, the certificate of heirship should be obtained currently. A missing party may lengthen a trial that lasts for years, on procedure. The list of parties in the petition should not be left without being compared with the chain of title. The journal extract and the chain of the former owners are the raw material of this list.

Questions that come up often

What is an action for cancellation and registration of title?

An action for cancellation and registration of title contains a request that a registration seen as contrary to law, or as wrongful, be struck off, and that the correct right holder be entered on the register. The purpose is to remove the mismatch between the title record and the real state of the right. The action may ask for both the cancellation and the new registration together; only saying "let it be cancelled" sometimes leaves the register empty. The basis may be a forged document, lack of capacity, collusion, a cadastral error, or unauthorised representation. Not every error of a record fits the same action. A preventive check of the sale does not stand in for this action. This article is general information; the concrete record and the documents are taken as the basis.

What does a wrongful registration mean?

A wrongful registration is the entering on the land registry of a record that does not rest on a real legal cause, or that rests on a defective transaction. A forged power of attorney, a seller without capacity, a collusive transfer, or an unauthorised official's proceeding are typical areas of debate. Although the registration appears "official" on its face, it may have lost its cause. The Turkish Civil Code protects reliance on the correctness of the register; this reliance does not make every wrongfulness eternal, however. An acquisition by a third person in good faith is a separate layer of defence. An allegation of wrongfulness should be made concrete with the documents and a witness. A general sentence of "the title is wrong" is not enough. The characterisation changes according to the file.

Is a third person in good faith always protected?

A person who acquired a right in rem by relying in good faith on the land registry may be protected if the conditions in the statute are formed. This protection is not automatic and unlimited. Good faith is not built, in every file, by ignoring the annotations on the record, the suspicion about the power of attorney, the extraordinary lowness of the price, or the indications of collusion within the family. In the cadastre, and in some types of wrongfulness, the regimes of the period and of the exception are separate. The defendant cannot be content with saying "I looked at the title"; the concrete fact of the acquisition is examined. The claimant should also calculate the third person's position from the start. The current article and judicial practice are read together. This article does not give a promise of definite protection.

Does a cadastral determination close the action for cancellation of title?

The cadastre makes the determination of the boundary and of the owner of the immovable collectively; it does not mean, however, that every determination is undisputable forever. The regimes of the action and of the period in the Cadastral Law may be bound to the record of determination, to the announcement, and to forfeiting periods. The periods may give birth to a loss of a right; a day from memory is not fixed in this article. The current article, the date of the determination, and the fact of service or of the announcement should be checked. Allegations outside the cadastre (such as a later wrongful sale) may run separately. A boundary dispute and a wrongfulness of the owner are not the same construction of a petition. A technical expert comes into play in most files. The concrete record is taken as the basis.

How is this action separated from the check before a transfer of title?

The check before a transfer of title is a preventive list that scans the encumbrance, the mortgage, the attachment, the power of attorney, and the planning risk before the transaction is yet made. The article the check before a transfer of title tells that checklist. Cancellation and registration of title, however, is the contested route directed at correcting the register after the record has already been formed. One is a precaution before the transaction; the other is the action of the dispute. That the check was not made does not make the action impossible; it may affect the debate on good faith, however. The two articles answering the same question misleads the reader. This article is focused on the action and on the wrongful registration.

How does collusion by the deceased intersect with cancellation and registration of title?

Collusion by the deceased is an allegation that the person leaving the inheritance concealed a disposition, shown as a sale, in order to harm the heirs. The result appears in most files as a request for cancellation of the title record and for registration to the estate. The basis and the proof differ from a general wrongful registration: the capacity of heir, the indications of collusion, and the rules of inheritance law come to the fore. The detail is the subject of the article collusion by the deceased. This article does not stand in for that article; it only explains the form of the register action. Lack of capacity, or a forged power of attorney, are characterisations separate from collusion. Melting the concepts under a single heading weakens the petition.

Against whom is the action opened, and is the land-registry directorate the defendant?

The principal defendant is, as a rule, the apparent owner who rests on the wrongful registration, and the later co-owners if there are any. The land-registry directorate, as the administration that keeps the register, may be the subject of a debate as an opponent or as an accessory intervener in some files; it is not the automatic single defendant in every action for cancellation. The competent court is the civil court of first instance in most immovable disputes; in cadastral actions the jurisdiction may differ. Competence is bound to the court of the place where the immovable is. For immovables in Ankara, the competent court is determined with the district and the block and parcel on the title record. A wrong opponent lengthens the action. The register record and the chain of transfers determine the list of defendants.

What is done so that there is no new transaction on the title during the action?

An interim measure, and an annotation on the title record, may help to cut a new acquisition in good faith, or a collusive chain, while the trial continues. The measure is not given automatically on every application; an appearance of being justified, a loss hard to remedy, and sometimes security, are looked for. In an action without an annotation, the defendant may transfer the immovable to a third person; this enlarges the debate on good faith. The measure is not a definite judgment on the merits of the action. If there is an attachment or a mortgage, the order and the priority are read separately. The application is thought of together with the petition, or urgently. The concrete record and the ground of the danger should be written. This article does not contain a promise of a measure.

Conclusion

An action for cancellation and registration of title aims to sort a wrongful or unlawful record out of the register and to write the correct owner. Good faith, the cadastre, and collusion by the deceased are separate layers. The check before a transfer of title is a preventive list; it is not a copy of this action.

The article is for general information. The concrete chain of title, the documents, and the current legislation should be assessed together.

For the frame, the pages immovable-property law and the intersecting inheritance law may be looked at.