The Case Of Enforcement To Register In The Land Registry Caused By Fiduciary Transaction

Fiduciary transaction is a legal institution that is not regulated in Turkish Law. However, its existence is accepted in doctrine and practice. “Fiduziarisches Rechtsgeschäft” in Swiss law; “Treuhandverhältnis” in German law and “Trusting relations” in Anglo-Saxon; It is a fiduciary transaction expressed in terms of concepts. A fiduciary transaction is preferred because it creates a stronger legal situation for the parties than ordinary transactions. So much so, that the movable, real property or receivable becomes the full right holder with the fiduciary transaction. This provides more protection than the pawn. Because if the debt is not paid in the pawn, the obligee obtains his receivable by converting the property into money through the execution office. However, in fiduciary transactions, he can convert the said good into money himself, or he can keep it under his responsibility without turning it into money. On the other hand, unlike the fiduciary transaction, the pawn is an accessory right attached to the claimant. If the principal claim is terminated or the contract giving rise to the principal claim is invalid, the right of pawn does not arise. However, there are typical legal problems arising from the fact that all rights have been transferred and the fiduciary contract is only relatively binding. These inconveniences are especially collected in the return of the movable, immovable or receivable that the believer has transferred. In case of bankruptcy of the believer, the fact that the property or right is included in the bankruptcy table and the believer does not have the right to remove it from the table is one of them. Despite the fact that the believer owes the transfer, refraining from returning the property subject to the faithful transaction to the believer or transferring it to a third party are other problematic points that we encounter in practice. In this study, the case of enforcement to register in the land registry that the believer can file against the believer and in some cases against the third party for the return of the real estate subject to the fiduciary transaction is evaluated. It should be noted that the subject of the fiduciary transaction is movable, immovable and receivable. However, as of our subject, there are only explanations regarding immovables.