Cancellation of cadastral registration against owners who had a legal title after 60 years, disrupted the legal certainty and violated the right to property
Muharrem Güneş and others v. Turkey 24.11.2020 (app. no. 23060/08)
Challenge of ownership of real estate by the state after 55 years and cancellation of title deed after 60 years. Good governance, legal certainty and property rights.
The applicants are owners of a property, the title of which had been registered by their predecessor father, in the Land Registry. Their predecessor had been recognized as the owner of the property since 1951, by virtue of a court decision due to uninterrupted peaceful possession. After 55 years, the ownership of the applicants in some parts of the said property was disputed by the State and after the opinion of the cadastral committee, a registration correction was made and the ownership passed to the state. The domestic courts rejected the applicants’ appeals in an irrevocable decision on the ground that those parts constituted a forest area and were considered inadmissible for the establishment of a right in rem by individuals.
The Court reiterated that any interference with the peaceful enjoyment of possessions must be proportionate to the purpose for which it was served and that good administration must not disturb the legal certainty of the administration.
In the present case, the ECtHR found that the applicants had been able to enjoy their property for a long time under a legal title, in good faith and without misleading the authorities. The ECtHR therefore considered that the annulment of their title deed on the grounds that the title deed had been erroneous had disturbed legal certainty because it had taken place after a long period in which the applicants in good faith were the owners of the property. As the authorities did not react quickly, the ECtHR ruled that the equilibrium had been disturbed and acknowledged a breach of the applicants’ right to property.
Article 1 of the First Additional Protocol
The case concerned the dismissal of title claims submitted by the applicants regarding several plots
of land registered as Treasury property and the failure to take account of the ownership title
awarded to Adem Güneş by judicial decision of 1951.
The applicants are nine Turkish nationals who were born between 1943 and 1970. They live in
Diyarbakır (Turkey). They are heirs to Adem Güneş.
In 1951 Adem Güneş had brought before the Eğil Regional Court an action for title over a property
based on adverse possession. In the same year the regional court allowed his request, noting that for
over 20 years he had retained uninterrupted peaceful possession of the land in question, which was
an “oak field”. He had been granted title over the land entered in the Land Registry. Later the land
had been voluntarily split up into several plots within allotment no. 119.
In 1997, following amendments to the land register, plots nos. 7, 9, 26, 27 and 40 in allotment
no. 119 were registered as Treasury property. According to the conclusions of the cadastral
commission, no ownership title in respect of the plots of land had been found during the
examination of the land register, and those plots could not have been acquired by adverse
possession inasmuch as they were on rocky land unsuitable for farming. Furthermore, plot 8, which
was untilled land, was registered as Treasury property.
In 2003 the applicants brought an initial action seeking the annulment of the registration of plots
nos. 26, 27 and 40 as Treasury property and their re-registration in their names. They submitted,
among other things, that their ownership title had been entered in the Registry. In 2006 the regional
court dismissed their action, noting in particular that some of the plots were now under water in a
dam and could not be privately owned. The court also pointed out that the plots of land unusable for
farming purposes could not have been acquired by adverse possession, noting that the section of
plot no. 27 which was not under water was unsuitable for farming. The applicants’ appeal on points
of law was dismissed in 2007.
In 2007 the applicants brought another action before the regional court seeking the registration of
plots nos. 7, 8 and 9 in their names on the land register. They argued that contrary to the findings of
the cadastral commission, their ownership title had been entered in the register by judicial decision
of 1951. They also explained that they had continued to cultivate and own the plots of land after the
death of Adem Güneş in 2003. In the same year the regional court dismissed their action, pointing
out that the whole of plot no. 7 and two sections of plot no. 8 were under water, having been
flooded by a dam. It also held that plot no. 9 and the rest of plot no. 8 should be considered as
woodland, which could not be privately owned. In 2008 the Court of Cassation dismissed the
applicants’ appeal on points of law on the grounds that the 1951 judicial decision could not be
invoked against the Treasury given that the latter had not been party to the proceedings.
Relying, in particular, on Article 1 of Protocol No. 1 (protection of property) to the Convention, the
applicants complained of an infringement of the right to the peaceful enjoyment of their property.
THE DECISION OF THE COURT…
The Court noted that the decisions of the Commission of 12 December 2006 and 27 December 2007 confirming the cadastral findings had resulted in the final annulment of the registration, invalidating the title of the applicants to the property in question, namely the judgment of 24 September 1951. This situation constituted deprivation of property within the meaning of the second sentence of the first paragraph of Article 1 of the First Additional Protocol.
The Court recalled that the proportionality of the intervention in the right to property implies a fair balance between the requirements of the general interest of the community and the requirements of the protection of the fundamental rights of individuals. This balance is upset if the person concerned had to suffer “a special and excessive burden”.
In the context of property protection, special attention must be paid to the principle of sound administration. This principle requires that when a matter of general interest is at stake, and in particular when the case concerns fundamental rights, public authorities must act promptly and appropriately, and above all, in a consistent manner.
While this principle of good administration does not preclude the authorities from correcting irregularities, even when they arise out of their own negligence, the need to correct an old “error” should not constitute a disproportionate interference with the right acquired by the person concerned. with good faith in the actions of public authorities.
The risk of state misconduct is borne by the state and should not be to the detriment of the person concerned, especially when no other competing private interest is involved. In the context of the cancellation of an erroneously assigned title deed, the principle of good administration not only obliges the authorities to act quickly in order to correct their mistakes, but also implies the payment of a reasonable amount as compensation to the holder.
The Court observed that the applicants had registered a title deed in the Land Registry. The Court of Eğil recognized the ownership under the principle of extraordinary use of the disputed property in 1951 because it considered, after an on-site visit and expert opinions, that the property in question met the conditions of adverse possession and that the owner of the disputed property had county and occupation for more than twenty (20) years.
The ECtHR recalled that, according to Turkish law, registration in the Land Registry is a condition for the transfer of a right in rem and that a title registered in it is an indisputable proof of the existence of ownership.
It notes that the applicants were able to enjoy their property in a normal manner for a very long time until the title deed in favor of the Public Treasury was annulled and that they could legally consider themselves in a state of “legal certainty” with that title.
It is true that the applicants had obtained the title following a procedure in which the administration was not a party and that the domestic courts had ruled that the said decision (1951) could not bind the Ministry of Finance. However, this point was not decisive for the Court, as this irrevocable decision concerning the ownership of the property in question had been registered in the Land Registry and the applicants had a duly registered title deed which is enforceable against third parties until 15 January 2019. The Court observed in that regard that a simple registration in the Land Registry was sufficient to make the right enforceable against third parties. Indeed, under Article 1020 of the NCC, no one can claim to be circumventing the Land Registry. In addition, this is one of the purposes of registering property, and it applies to third parties.
In addition, both the title of the applicants and the decision on which it is based come from public authorities. There is no evidence – and the Government has never alleged this – that the applicants made misleading maneuvers, made false statements or otherwise tried to deceive and mislead those authorities, including the court. If the latter had made mistakes, they should not be remedied against applicants whose good faith has never been challenged.
Moreover, given the particularly long delay between the annulment of the Land Registry and the decision, it is difficult for the Court to accept that the authorities reacted quickly and in a manner consistent with both the principle of good governance and legal certainty.
In the light of these factors, the Court found that the fair balance had been disturbed to the detriment of the applicants and found a violation of the right to peaceful enjoyment of possessions (Article 1 of the First Additional Protocol).
Just satisfaction: the Court decided to strike out of its list of cases the part of the application concerning pecuniary and non-pecuniary damage