Correction in the land registry; It is the correction of an incorrectly registered record in the registry and making it correct. In other words, it is the process of correcting a mistake in the land registry from its untrue state to its correct state. The correction is not a correction related to the right in rem, but a correction of the mistake in the land registry. With the correction, the act of inaccuracy is made in accordance with the correct situation. This is because by examining the underlying land registry records of an incorrect registration, the mistake is made in accordance with the underlying record. This situation reflects the difference between cancellation and correction. If the registrations of the transactions made in the land registry offices lack a legal basis or if the existing record in the registry and the underlying documents do not match each other, if this situation restricts the right of disposal of the person holding the right of disposal, this situation causes the registration to be corrupt. In addition, sometimes, if a right in rem is established on the immovable property for a certain period of time, the situations arising from the expiration of the period or the non-registration of a right acquired by acquisition other than registration in the land registry are also corrupt registrations.
Rectification in the land registry refers to correcting an incorrect registration to reflect the true situation. It involves rectifying an erroneous record to align with the facts. These corrections can pertain to simple typographical errors or to the rectification of registrations and cancellations that have become outdated or lost their legal validity, resulting in unlawful registrations. Particularly in the latter case, the status of real rights becomes controversial.
As stipulated in Article 1023 of the Turkish Civil Code, third parties who acquire ownership or another real right in reliance on the registration in the land registry in good faith are protected in their acquisitions. Therefore, maintaining the land registry in accordance with reality is crucial for ensuring public order. Despite this, Articles 1025, 1026, and 1027 of the Turkish Civil Code, which address corrections in the land registry, fall short of adequately regulating the matter.
Specifically, Article 1027 grants land registry officials the authority to rectify errors in registry records ex officio but restricts this to simple typographical errors, leaving the identification of such errors to the executive branch. While a Land Registry Regulation was issued by the Council of Ministers following the 2017 constitutional amendments, this regulation does not clarify what constitutes such errors. Consequently, issues concerning real rights have been left to the discretion of the administration and, in particular, the registry officials. In practice, registry officials often refrain from taking corrective action due to concerns about adversely affecting real rights and the potential legal consequences, leading to inconsistencies in practice.
This situation results in violations of property rights guaranteed by the Constitution and the European Convention on Human Rights. The inadequacies in the Turkish Civil Code raise significant problems regarding how to address these issues and establish uniformity in practice. This study examines the circumstances under which corrections in the land registry can be made ex officio by registry officials without resorting to litigation and how the concept of simple typographical errors can be concretized.
Such a study aims both to address practical deficiencies in implementation and to prevent actions stemming from the errors of officials that could result in state liability, and reduce the unnecessary referral of simple typographical errors to judicial bodies, thereby contributing to procedural efficiency. Furthermore, addressing these deficiencies could prevent property rights violation claims from being brought before the Constitutional Court.
Employing a qualitative methodology, the study draws upon literature review and case law while adopting a comparative approach by examining how the Swiss Civil Code addresses this issue. The Swiss Civil Code provides guidance through its amendments to property law, granting registry officials the authority to make ex officio corrections to the land registry in certain cases, including the deletion of legally obsolete records. These changes have facilitated the deletion of some invalid records.
In contrast, Turkish registry officials hesitate to undertake ex officio corrections, even in cases of clear legal authority, due to ambiguities in legislative provisions. While the authority to correct simple typographical errors is granted by law, it is not effectively exercised in practice. Additionally, registry officials have limited authority to collect data from relevant public authorities, which further impedes action.
The study concludes that the inadequacies in the Turkish Civil Code and secondary regulations have led to violations of property rights and state liability issues. It recommends expanding the statutory authority of registry officials to enable them to correct records more effectively, thereby facilitating access to material truth. By identifying existing problems and proposing solutions, the study aims to provide guidance for potential legislative amendments.
Land Registry, Cancellation, Legal Basis, Disposition Right
