The Problem of Enforcement of Title Deed Cancellation and Registration Decisions Through Judicial Execution Proceedings

Decisions regarding the cancellation and registration of title deeds are not merely "pay" orders like a classic debt judgment. These decisions directly affect real estate ownership and the content of the land registry. Therefore, the matter is not limited to simply submitting a court decision to the enforcement office; the decision must final, enforceable, applicable by the land registry office, and in some cases supported by technical procedures requiring cadastral/registration notifications . The source of the problem arises precisely here: on one hand, there is the general logic of enforcement based on a court judgment, and on the other hand, there is the special enforcement regime for decisions concerning real estate ownership.

According to the Turkish Civil Code, the general rule for acquiring immovable property is registration. However, Article 705/2 of the Turkish Civil Code explicitly states that in cases such as inheritance, court decisions, compulsory execution, occupation, and expropriation, ownership is acquired before registration, but registration in the land registry is still necessary for carrying out transactions as the owner. Immediately next to this, Article 716/2 of the Turkish Civil Code stipulates that a person who acquires immovable property based on a court decision can have the registration done directly . When these two articles are read together, it becomes clear that the fundamental debate in the execution of a land registry cancellation and registration decision is not so much "has the right been acquired?" but rather "by what method and at what stage will this right be transferred to the land registry?"

The Enforcement and Bankruptcy Law is not entirely indifferent to this area. According to Article 28 of the EBL, when a judgment is rendered in favor of the plaintiff in real estate cases, the court notifies the land registry office of a summary of the judgment without requiring a separate request from the plaintiff; the relevant office then annotates this in the property's registration. Article 29 of the EBL states that changes occurring after this notification generally do not affect enforcement proceedings. This provision provides a protective framework, particularly against risks such as the transfer of the property to third parties, the imposition of encumbrances, or changes in the actual situation after the judgment. Therefore, in land title cancellation and registration cases, the enforcement issue is not limited to the final registration stage; the law also includes an enforcement logic aimed at protecting the registry even at the judgment stage.

However, the statement "decisions on the cancellation and registration of title deeds are enforced through execution of a court judgment" is incomplete on its own. Because Article 30 of the Enforcement and Bankruptcy Law regulates the execution of judgments concerning the performance or non-performance of an action, and accepts that the enforcement officer can send an execution order to the debtor, instructing them to perform the action specified in the judgment. At first glance, decisions on the cancellation and registration of title deeds might be considered within this scope. However, since decisions concerning the ownership of immovable property do not require a declaration of intent from the debtor and involve a court judgment that directly changes the land registry, the practice often deviates from the classical "compelling the debtor to perform the action" model; the focus shifts to the conversion of the final judgment into registration at the land registry office. Therefore, while execution of a court judgment is a theoretical topic in decisions on the cancellation and registration of title deeds, the practical problem appears more the enforcement of the final judgment in the land registry .

The crucial point is the requirement of finality. Articles 350/2 and 367/2 of the Code of Civil Procedure explicitly that decisions concerning personal law, family law, and real property rights cannot be enforced until they have become final . This provision is extremely important because, while appeals and cassation do not generally suspend the enforcement of a decision, decisions concerning real property rights constitute an exception to this general rule. Even if you have a judgment for the cancellation and registration of a title deed, if the decision has not yet passed through appeal or cassation review and become final, there is a serious obstacle to using that judgment for compulsory enforcement or title deed registration. Many hesitations in practice arise from this dilemma: "There is a judgment, but it hasn't become final."

The Land Registry Regulation has also established a similar filter. According to Article 20 of the Regulation, in registrations of real rights that do not require the preparation of an official deed, a final court decision is required for registrations based on court decisions . In other words, it is not sufficient for the decision presented to the land registry office to be merely a judgment; for a registration transaction affecting the real property, the decision must also be final. This regulation complements the finality requirement in the Code of Civil Procedure at the administrative application level and explains why land registry offices require a finality annotation.

The conclusion drawn from this is: In land registry cancellation and registration decisions, the problem is often not the dilemma of "enforcement office or land registry office?", whether the decision is final and in the land registry . Since Article 716/2 of the Turkish Civil Code states that a person who acquires ownership based on a court decision can have the registration done directly; if the decision is clear, final, and technically enforceable, the primary method is for the party in whose favor the decision was made to request registration at the land registry office without the need for a separate debtor's will. Texts reflecting the Turkish Land Registry and Cadastre General Directorate's (TKGM) practice also state that while the enforcement of court decisions is a constitutional obligation it does not automatically constitute a registration order; a request for enforcement is required, and the party in whose favor the decision was made must apply to the relevant land registry office to request registration. Furthermore, it is emphasized that land registry offices are bound by the request.

Therefore, a significant error in practice is to treat the decree of cancellation and registration of title deeds as a mere "decree for the performance of an action," neglecting the aspects of finality and title deed technicality. However, the operative clause of the decision should be clear enough that it does not require further interpretation by the land registry office. It must clearly indicate which island, which parcel, which independent section, which share ratio, whose registration is to be cancelled, and in whose name the registration will be made. If the judgment is not sufficiently clear or gives rise to doubts in its execution, the clarification procedure under Article 305 of the Code of Civil Procedure (HMK) comes into play. Indeed, Article 305 of the HMK acknowledges that parties may request clarification if the judgment is not sufficiently clear or gives rise to doubts in its execution. The General Directorate of Land Registry and Cadastre's practice also points to the need for clarification in cases where the judgment gives rise to doubts in its execution.

The second major problem in enforcing court judgments for the cancellation and registration of title deeds technical execution . Sometimes, a court decision results not only in a change of ownership but also in a technical consequence related to subdivision, consolidation, establishment of easements, correction of area, boundary changes, or zoning applications. In such cases, the land registry office cannot act alone; a registration notification may need to be prepared by the cadastral directorate. The General Directorate of Land Registry and Cadastre's (TKGM) application documents regarding the execution of court decisions clearly show that in transactions such as subdivision and easement, a registration notification is prepared by the cadastral directorate, and then the registration is carried out by the land registry office. This situation demonstrates that a title deed cancellation and registration case can become not only a legal but also a technical execution case.

Furthermore, if there are deficiencies in the technical documents or inconsistencies between the project and the ruling, the implementation becomes even more complicated. The General Directorate of Land Registry and Cadastre's Circular No. 2019/13 stipulates that if sketches, plans, or maps are found to be inconsistent with technical principles, a decision for correction must be obtained from the relevant parties. However, even if a correction decision cannot be obtained, the process will be carried out in the most appropriate manner due to the obligation of enforcement, and a note will be added regarding the inconsistent technical aspects. This provision reveals a typical dilemma encountered in the implementation of land registry cancellation and registration decisions: there is a court ruling, but the technical basis is insufficient. In this case, instead of completely halting enforcement, the system seeks the most appropriate technical adaptation to the ruling.

Another issue is changes in the land registry or actual possession that occur after the judgment. Article 29 of the Enforcement and Bankruptcy Law protects the creditor by stating that changes made after the notification of the judgment to the land registry will not affect the enforcement proceedings. This provision becomes important if the defendant or third parties carry out hasty transfer transactions after the judgment to prevent its enforcement. However, if there is a land registry record showing that the third party did not acquire the property from the debtor but directly occupied it, the law also provides for a period of time for them to file a lawsuit. As can be seen, the legislator has established a dual structure in the enforcement of land registry cancellation and registration decisions, providing both protection in favor of the plaintiff and procedural security for the third party.

In practice, the cost and fee aspect also comes into play. If a registration notification is issued by the cadastral directorate as part of the execution of a court decision, a service fee determined for this process can be collected according to the General Directorate of Land Registry and Cadastre's (TKGM) practice; however, it is stated that a second revolving fund fee should not be charged when the registration related to the same transaction is carried out at the land registry office. On the other hand, if a new and separate transaction is requested outside of the cadastral notification, a new service fee may arise. Although this point may seem minor at first glance, it is one of the practical reasons for the slowdown in the execution of land title cancellation and registration decisions, especially in large parcels related to subdivision/easement.

So, what exactly does "enforcement through a court judgment" mean within this context? In my opinion, in decisions regarding the cancellation and registration of title deeds, enforcement through a court judgment is often supplementary framework, not the primary one . The essential element is the registration of the final judgment regarding the real right in the land registry. The logic of Article 30 of the Enforcement and Bankruptcy Law is geared towards making the debtor perform the act; however, in a decision regarding the cancellation and registration of a title deed, the defendant often does not need to go and sign an official deed. If the judgment is directly suitable for correcting the registry, the registration process should be carried out at the land registry office. The enforcement office gains importance more in cases involving the enforcement of the indirect consequences of the decision, advance payment of expenses, fulfillment of additional obligations, or combined decisions involving different types of obligations to do or not to do. When the norms are considered together, in a purely title deed cancellation and registration decision concerning the real property, the center of gravity of "enforcement" shifts from the enforcement office real estate execution area.

Therefore, the enforcement strategy should be considered from the outset when filing a lawsuit and rendering a judgment. The judgment should clearly state the identity of the immovable property, unequivocally indicate the share ratio, explicitly establish the cancellation and registration order, refer to the technical sketch and expert report if necessary, and, if an independent section or share transfer is involved, formulate these details with clarity to facilitate the enforcement of the judgment. In most cases, the first step after a decision is made is not to initiate enforcement proceedings, but to obtain the final judgment, correct any necessary clarifications or corrections, and then apply to the land registry office as the party in whose favor the decision was made. If technical enforcement is required, the cadastral aspect should also be planned simultaneously. This method both reduces time loss and prevents unnecessary enforcement complaints.

In conclusion, the problem of enforcing land title cancellation and registration decisions through enforcement proceedings is not merely a matter of Article 30 of the Enforcement and Bankruptcy Law , as it appears on the surface. The problem cannot be solved without considering the substantive legal effect in Articles 705 and 716 of the Turkish Civil Code , the finality requirement in Articles 350 and 367 of the Code of Civil Procedure , the enforcement logic in Articles 28-30 of the Enforcement and Bankruptcy Law , and the land registry practice in Article 20 of the Land Registry Regulation . The correct approach is to view these decisions not simply as "the debtor performing an action," but as real right decisions that must be converted into the land registry based on a final court judgment . When viewed in this way, the source of the fundamental problems in practice becomes clear: the non-final judgment, the ambiguous clause in the judgment, the lack of a technical basis, the requirement for registration notification, and the wrong choice of procedure. When these are managed correctly, the enforcement of land title cancellation and registration decisions is accelerated; when managed incorrectly, even if an enforcement file is opened, no result can be obtained.