ABSTRACT
The contentious question of whether the mortgage likewise ends off the record is brought up by the termination of the receivable. However, because of its reliance on the receivable, in our opinion, the mortgage right expires off the record following the termination of the receivable.
I. INTRODUCTION
A mortgage is a right that enables the collection of the receivable amount by selling the immovable property to the owner in case of nonpayment, with the purpose of securing a debt. As a absolute right, a mortgage can be asserted against anyone and grants the creditor priority in collecting the debt.
The mortgage right possesses the characteristic of being dependent (ancillary) to the receivable. This characteristic manifests itself from the establishment of the mortgage right until its termination. There is no basis to discuss a mortgage right if the receivable hasn’t come to fruition or is void. Dependency on the receivable can sometimes be absolute and sometimes more flexible. In our study, we will examine the dependency of the mortgage on the receivable and the consequences of this characteristic.
In the first section of our study, we attempted to explain the concept of mortgage and established a correlation between the types of mortgages and the status of the receivable.
In the second section, we examined the consequences arising from the establishment and use of the mortgage. For this purpose, emphasis was placed on the concept of registration, and the requirements for registration were explained. Regarding the use of the right, the scope of the receivable subject to the mortgage and general pledge records were elucidated. The dependency on the receivable in safeguarding trust in the land registry was distinguished from cases where there is no receivable and the mortgage is fraudulent, supported by decisions of the Court of Appeal.
In the third and final section, the consequences arising from the termination of the mortgage were examined, along with the opinions found in the doctrine. The conclusions reached by these opinions were presented, and our own perspective was expressed.
II. CONCEPT OF MORTGAGE
A mortgage is a limited real right that secures a debt and enables a creditor to obtain their debt from the value of real estate. The debt to be secured doesn’t necessarily have to be a monetary debt1. Nonmonetary obligations, such as acts of giving, refraining from acts, or performing certain actions, can also be secured by a mortgage2. The sole requirement for securing a debt with a mortgage is the existence of a specific debt, or in other words, the amount of the debt being registered in the land registry in Turkish currency. However, according to Article 851/2 of the Turkish Civil Code (TCC), a mortgage can be established for a foreign currency debt without being registered in Turkish currency. The function of a mortgage is solely to provide security for the debt; it does not provide negotiability for the debt3. The answer to the question of whether the mortgaged property belongs to the debtor is found in Article 881/2 of the Turkish Civil Code (TCC). According to this provision, it is not necessary for the mortgaged property to be owned by the debtor.
A mortgage can be established not only for existing debts but also for debts that are certain or likely to arise, so it is necessary to discuss the types of mortgages. The principal mortgage is established to secure existing debts. The amount of the debt is sufficient for the establishment of the mortgage. The amount recorded in the land registry only indicates the principal amount4. The upper limit mortgage arises when the amount of the debt to be secured is not known at the time of establishing the mortgage5. For example, an upper limit mortgage can be established for potential compensations, receivables, or credit accounts. The determined upper limit represents the maximum amount for which the mortgaged property is liable, and it does not represent the amount of the secured debt. In this type of mortgage, if the total of the principal and ancillary debts exceeds the limit, the excess amounts will be considered ordinary debts and cannot benefit from the mortgage6. When determining the type of mortgage, the expressions used in the mortgage contract by the parties can be utilized7.
The functions of a mortgage solely to secure a debt8, and its dependence on the debt, along with its non negotiability unless attached to a negotiable instrument, the debtor’s personal liability beyond the collateral, and its applicability to someone else’s debt, are characteristics of a mortgage9.
The characteristic of a mortgage being dependent on the receivable forms the subject of our study. After providing general information about mortgages, we need to focus on this particular feature of mortgages.
III. THE DEPENDENCY ON RECEIVABLE IN ESTABLISHMENT AND UTILIZATION
A. Generally
The mortgage right is an ancillary (dependent) right on the receivable10. This dependency sometimes appears more flexible, while at other times it is more absolute11. Dependency on the receivable, also known as ancillarity, refers to the security rights’ oneway dependence on the receivable they secure12. A mortgage established for an invalid receivable will not be valid13. Another aspect of its oneway nature is that a mortgage that lacks legal significance and is defective in its establishment will not affect the validity of the receivable14. In other words, the material aspects of the mortgage, such as its creation, existence, amount, and termination, are dependent on the receivable right; the legal status of the secured receivable directly affects the mortgage right as well15.
Although the Turkish Civil Code (TCC) provisions do not explicitly regulate the dependency between the mortgage and the receivable, some articles contain expressions that reveal this dependency. The purpose and nature of the mortgage are explained in Article 881 of the TCC, while the right to request the termination of the mortgage can be seen in Article 883, highlighting this characteristic of the mortgage.
At this point, the characteristics of the dependency of the mortgage on the receivable at various stages would need to be addressed.
B. The Dependency on the Receivable in Establishing the Mortgage
According to Article 856 of the Turkish Civil Code, the establishment of a mortgage on immovable property will be achieved through registration in the land registry, with exceptions as provided by law. This provision indicates that, as a general rule, registration is the constitutive element for acquiring a real right16. This issue arises as a result of the principle of public disclosure. The invalidity of registration would also imply the invalidity of the mortgage. Three elements are required for valid registration: the request foregistration from the owner of the immovable property, a valid cause of acquisition, and registration17. The cause of acquisition could be a mortgage agreement, as well as a court decision or a provision of law18. Examples of cases where the cause of acquisition is a provision of law include statutory mortgage rights. If there is a valid cause of acquisition and the owner of the immovable property refuses to provide written consent for registration, the creditor can compel the owner to request registration by applying to the court19. In this case, the court decision will be the cause of acquisition.
We should note that the underlying debt relationship and the cause of acquisition are distinct concepts. The cause of acquisition is the legal basis required for registration to take place; apart from the cause of acquisition, a separate underlying debt relationship is necessary for the establishment of the mortgage, as per the principle of ancillarity20. The registration of the mortgage in the land registry is only evidence of the existence of the mortgage right21; It does not provide evidence regarding the existence and amount of the receivable22.
A mortgage established for a noncertain receivable will never gain material value; in other cases, the value of the mortgage will depend on the existence of a valid debt23. Therefore, when establishing a mortgage, the dependency on the receivable is evaluated as either absolute or flexible24. The fact that a mortgage is not absolutely tied to the receivable, does not encounter formal obstacles during its establishment, and exists solely for the purpose of security is a convenience introduced to prevent impediments25.
In the case of a principal mortgage, the dependency on the receivable is absolute because this mortgage represents a situation where the receivable arising from the underlying debt relationship is secured. Therefore, the invalidity of the receivable will result in the invalidity of the established mortgage26. In the case of an upper limit mortgage, the existence of a basic relationship that will lead to the emergence of the receivable or the possibility of the receivable arising is sufficient. This relationship constitutes the necessary condition for the establishment of the mortgage27. When a mortgage right is established for a receivable that does not yet exist, the mortgage right is not initially present even if it is registered; however, it arises when the receivable is born28. However, the priority of the mortgage right is determined based on the degree of its establishment, not the moment of its creation. The registered mortgage exists formally during the interim period and provides security for the mortgage creditor against enforcement proceedings against the property owner and the subsequent transactions of the property owner29. As seen, the dependency of the mortgage on the receivable for future or probable receivables is relaxed in terms of establishment30.
It is not necessary to demonstrate the underlying debt relationship that gives rise to the receivable for the validity of the mortgage agreement31. However, including the underlying debt relationship in the mortgage deed will facilitate proving which receivable the mortgage was established for32.
C. Dependency on Receivables with in the Scope of Use of Rights
In the exercise of rights, the dependency of the mortgage on the receivable is absolute33. The mortgage creditor must prove their personal receivable in order to exercise the mortgage right. In other words, a necessary condition for the exercise of the mortgage right is the existence of a receivable that can be converted into cash34. In other words, even if the mortgage is registered, if the receivable specified in the mortgage agreement never arises, the mortgage right will not arise in favor of the creditor. Therefore, a valid receivable is required for the existence of the mortgage right35. Registration constitutes evidence of the existence of the mortgage creditor’s real right and creates an indication in this context36.
In accordance with Article 882/2 of the Turkish Civil Code, the land registry officer provides the creditor with a document showing the mortgage upon request. However, this document, which only proves the registration, does not have the status of a valuable instrument37. This provision demonstrates one aspect of how registration only serves as evidence of the existence of the real right. In other words, the document only confirms that the mortgage has been registered, but it does not make any assessment regarding the validity of the mortgage or the existence of the receivable.
The extent to which a receivable can benefit from the security provided by the mortgage primarily depends on the amount of the receivable. The scope of the mortgage in terms of the receivable is a factor that determines the amount of the receivable38. Whether it’s a principal amount or an upper limit mortgage, the mortgage burden shown in the title deed indicates not whether any receivable is included in the scope of the mortgage, but only how much the receivables included in the scope of the mortgage can benefit from the security39. The mortgage creditor can only obtain as much as they are owed after the conversion to cash, not the amount registered in the title deed. If a principal or upper limit mortgage is established for a matured receivable, the cancellation of the mortgage can be requested by proving the termination of the receivable. Additionally, if a partial payment has been made for the receivable, it may be requested to be recorded in the “annotations” column of the land registry40.
1. The Dependency on Receivables with in the Scope of General Lien Registrations
General lien registrations encompass the provisions of a mortgage agreement that cover all kinds of receivables that may arise in the future without limitation. Although mortgages based on such provisions are thought to provide limited collateral, there are different opinions regarding the source of this limitation. The prevailing view suggests that such mortgage agreements would be contrary to Article 23 of the Turkish Civil Code41. Otherwise, any kind of receivable that the creditorhas against the debtor will be included within the scope of the mortgage, thus making it impossible for the liability of the mortgage to terminate in contracts stating that all receivables will be within the scope of the mortgage, independent of any legal cause42. The consequence of a mortgage agreement violating the personal rights of the mortgagor is partial absolute nullity43. The contract only includes receivables that currently exist and are objectively foreseeable at the time the mortgage agreement is established44.
Another approach is that the limitation of broadscope mortgage agreements is a necessity of the principle of dependence on receivables. According to this view, the determination of which receivables such mortgage agreements cover should be based on the expectations of a typical bank customer. Incidental receivables, such as compensation claims based on noncontractual grounds, will not be included within the scope of the collateral provided by the mortgage45.
Another perspective argues that the absence of specifying the reason and scope under which the secured receivable may arise would imply the establishment of a mortgage independent of the receivable.
According to our view, in cases where the mortgage creditor is a bank, the broad scope of general lien agreements should be evaluated considering the principle of the mortgage being tied to the debt and within the framework of good faith, taking into account the expectations of an average bank customer. If the person placing the mortgage is not the owner of the property, they should not be exposed to the continuation of the mortgage or its conversion into cash solely based on the general lien registration, for the other debts of the credit debtor46. The pledging of any debt with a general lien registration will adversely affect the nature of the mortgage being tied to the debt. The Court of Appeal has ruled that the expression stating that the mortgage secures all current and future debts unlimitedly, as expressed in an official document, is considered an unfair condition according to the Turkish Code of Obligations.
In the decision of the Plenary Session of the Court of Cassation, it was ruled that pursuit cannot be carried out using the method of converting the pledge into cash due to credit card debt against the consumer who has already paid off the vehicle loan47.
D. Dependency on Receivables in the Transfer of Receivables
According to Article 891 of the Turkish Civil Code, the assignment of a receivable based on a mortgage is valid regardless of whether it is registered in the land registry. The necessary registration requirement for the validity of the mortgage does not apply to the assignment of the receivable. The transfer of the encumbered receivable is subject to the provisions of the Turkish Code of Obligations regulating the assignment of receivables. With the transfer of the receivable, the right passes automatically to the new creditor without the need for the registration of the mortgage and the removal of the name of the encumbered receivable holder and the writing of the new creditor’s name in the land registry48. According to Article 189/1 of the Turkish Civil Code, along with the assignment of a receivable, non personal priority rights and related rights also pass to the assignee. Although this provision is not mandatory, it is not possible for the mortgage securing only this specific receivable to remain in the hands of the assignor with the agreement of the parties49.
If the receivable does not exist, the assignment does not grant any right to the assignee through the registered mortgage50. Again, the mortgage cannot be transferred separately from the receivable. Such agreements are contrary to the principle of limited number and type due to the Civil Code’s regulation of the mortgage as a right dependent on the receivable, and therefore, they are definitively null and void. This situation is a consequence of the dependence on the receivable principle. The accessory follows the principal.
In order to prevent potential issues that could arise from such a transfer being carried out without the debtor’s knowledge, Article 31/2 of the Land Registry Regulation (LRR) emphasizes that the assignment of the receivable should be indicated in the “thoughts” column. However, this provision is a regulatory rule, so actions contrary to it will not affect the validity of the assignment51. Additionally, the mentioned records do not have a constitutive effect regarding the acquisition of the mortgage by the party acquiring the receivable.
The assignee will acquire the mortgage right within the framework of the provisions of the mortgage agreement between the owner and the assignor. Therefore, the general lien registration, as well as provisions such as the repayment record, in the mortgage agreement will be beneficial to them. However, if the assignee holds claims against the debtor for reasons other than the legal relationship on which the receivable secured by the mortgage is based, they can only benefit from the security provided by the mortgage based on the lien registration if there is no such provision in the mortgage agreement52.
Everything we’ve discussed so far would also be applicable in the case of a receivable being acquired through legal succession. According to Article 127 of the Turkish Civil Code, a third party who pays an amount under this provision will succeed to the rights of the creditor in proportion to the amount paid. Therefore, the receivable, along with the mortgage right dependent on it, will pass to the third party. In the case of partial payment, the third party will benefit from the mortgage right to the extent of the amount paid.
Article 596/1 regulates the subrogation of the guarantor. According to this provision, if the guarantor pays off a debt secured by a mortgage, they will succeed to the rights of the creditor in proportion to the amount paid. In other words, the mortgage right dependent on the receivable will pass to the guarantor in that proportion. While this issue was regulated with an uncertain provision in the repealed Law No. 818, it has been clarified by the Turkish Civil Code. In order for the guarantor to obtain the mortgages, these mortgages must either exist before the guarantee agreement is made or be established later, but they must be established for the receivable specified in the guarantee agreement. When the guarantee is provided, the guarantor covers all mortgages given by the principal debtor or third parties; however, the guarantor’s liability does not extend to mortgages given by a third party after the guarantee. A general mortgage given by the principal debtor will also remain outside the scope of the guarantor’s subrogation. The phrase “unless otherwise agreed” should indicate that the liability of the guarantor who makes the payment may be extended to include mortgages and other securities. However, the guarantor may gain subrogation rights over mortgages given by third parties after the guarantee through an agreement between the guarantor and the creditor.
While it is accepted that the guarantor needs to carry out certain legal procedures to acquire the mortgage right, the mortgage right passes to the guarantor automatically. The record in the “thoughts” column in the land registry is explanatory rather than constitutive even in this case.
1. Dependence on Receivables with in the Scope of Contracts
The assignment of contracts is regulated in Article 205 of the Turkish Civil Code (TCC). The assignment of contracts is a sui generis tripartite agreement with its own legal nature53. For a contract to be assignable, there must be a debt relationship that is capable of being transferred, and the parties must have appropriate declarations of intent.
For a debt relationship to be considered assignable, the rights and obligations arising from it must be transferable. If the contract relationship consists of personal rights and obligations, the rights and obligations cannot be transferred. In contracts involving personal rights, the transfer of the contract is not possible. Therefore, the concept of the transfer of the contract applies to contracts that are not person specific54. For example, a contract cannot be made for the assignment of one’s name, honor, and dignity55. Unlike the legal assignment of the contract, where the interests of the parties (the third party and the remaining party to the contract) are protected by law, the assumption of the contract cannot occur solely through an agreement between the transferor and the party assuming the contract. In order to bind the remaining party to the contract, either this party must participate in a sui generis tripartite contract, or they must express their consent to the agreement between the transferor and the party assuming the contract, either before or after such agreement. In other words, the consent of all three parties is required for the assumption of the contract56. Unlike the assignment of a receivable, the consent of the remaining party to the contract is also required57.
The assignment of a contract can also transfer the mortgage right to the party assuming the contract. The rights of the remaining party under third party mortgages given in favor of the remaining party in the contract will continue to exist. For example, the maximum amount mortgage established by the lender against the borrower should continue if the borrower changes. During the assignment agreement, either the party assigning or the party assuming the contract can provide such assurances in favor of the remaining party58.
For the third party’s security given in favor of the transferring party to continue, the consent of the third party is required59.
E. Dependence on Receivables in Protecting Security in the Land Registry
Article 1023 of the Turkish Civil Code states, “The acquisition of ownership or another real right based on registration in the land registry in good faith is protected.” The protection mentioned refers to the acquisition of real rights based on appearance in the land registry. It is possible for the mortgage to be acquired under Article 1023 of the Turkish Civil Code due to its nature as a real right.
Trust in the land registry for mortgages only covers the scope and existence of the mortgage on real property60. In this case, the registration of a mortgage right does not confirm the existence of the debt; similarly, indicating a specific amount as the mortgage burden does not imply that the creditor has a debt of that amount61. In such a case, if a mortgage has been established for a non existent debt or if the encumbered debt has ceased toexist and this non existent debt has been assigned, the new creditor will not be able to acquire the debt and the mortgage in good faith through reliance on the land registry entry. In this situation, they will not be protected under Article 1023 of the Turkish Civil Code62. If the debtor is faced with the assignment of a non existent encumbered debt, they can assert against the new creditor that the debt has not arisen, is invalid, or has been extinguished through subsequent payment63. Since the purpose of a mortgage is to secure a debt, in a situation where the existence of a valid debt cannot be established, a mortgage cannot be acquired independently of the debt, even through reliance on the registration appearing in the land registry in good faith.
However, if there is a valid debt, and the registration regarding the mortgage is fraudulent, the good faith of the third party acquiring the debt should be protected under Article 1023 of the Turkish Civil Code64. In this regard, according to a decision of the General Assembly of Civil Chambers of the Court of Appeal, even if the mortgage given by the owner spouse of the family home as security for a valid debt is invalid and fraudulent, the transfer of the debt to a third party entitles them to acquire the mortgage under Article 1023 of the Turkish Civil Code.
In terms of protecting trust in the land registry, there is a difference between the transfer of a mortgaged debt through legal succession compared to other methods. The transfer of both the debt and the mortgage through legal succession is legally tied to the performance of the debt. As it is tied to this condition, the transfer of the debt and the mortgage will occur automatically. The successor obtaining the mortgage right does not happen through reliance on the land registry. We observe that the Court of Cassation exhibits different attitudes regarding whether a guarantor who succeeds to the creditor by paying off a valid debt secured by an invalid mortgage, even in good faith, can acquire the mortgage right.
When we look at the latest decisions of the Court of Appeal, it can be observed that the status of the family home annotation as constitutive or explanatory is a highly debated issue. We see that the Court of Appeal currently considers the family home annotation to be explanatory in nature.
In conclusion, in our opinion, in the case of legal succession, since the acquisition of the mortgage right by the successor does not occur through reliance on and trust in the land registry, it should not be considered to take place under Article 1023 of the Turkish Civil Code. Legal succession is tied to the performance of the debt and is a consequence that arises automatically upon performance.
IV. DEPENDENCE OF RECEVABLES INCASE OF TERMINATION
A. Generally
The complete termination of the legal relationship that constitutes the source of the debt secured by a mortgage within the scope of a mortgage contract means the elimination of the debt itself. In the case of a principal mortgage, where a specific debt is secured, the mortgage will cease to exist effectively upon the payment of that debt65. If the mortgage in question is a maximum amount mortgage and secures fluctuating debts like those in a current account agreement or multiple debts based on a general credit agreement, the payment of any one or several of the debts secured by the collateral will not lead to the termination of the mortgage itself66.
The question of whether the mortgage terminates upon the cessation of the debt, i.e., whether the mortgage definitively terminates with the cessation of the debt’s obligation and the end of the receivable, is a subject of debate.
According to one view, even upon the payment and thus cessation of the debt, the mortgage will not automatically terminate67. For the mortgage right to be terminated, it needs to be officially removed from the land registry, i.e., a cancellation process must take place. The cessation of the mortgage right is a separate process from the end of the debt and should be treated independently. This view is based on the idea that the termination of the mortgage does not automatically occur with the end of the debt and requires an official procedure, namely cancellation68. According to this article, when the debt is terminated, the owner of the mortgaged property can request the creditor’s consent for the removal of the mortgage from the land registry, i.e., its cancellation69. If the mortgage had terminated automatically outside of official records due to the end of the debt, it would have been accepted that the mortgage ended without requiring the creditor’s consent.
Another view argues that since a mortgage can only secure a debt and there is no recognized type of mortgage independent of the debt, with the cessation of the debt, the mortgage also terminates automatically outside of official records70. According to Article 833 of the Turkish Civil Code, the owner of immovable property may request consent from the creditor to cancel the mortgage; however, this does not mean that the termination of the mortgage is only possible through the cancellation process in the land registry. If the creditor does not respond positively to the owner’s request for cancellation, the owner has the right, under Article 1025 of the Turkish Civil Code, to file a lawsuit based on real rights to correct the land registry. This lawsuit aims to bring the registry in line with the actual situation and is related to the real rights on the property71. In the event that the mortgage right terminates along with the debt, a court decision and the subsequent cancellation process based on this decision will clarify the current legal situation. In practice, courts decide on the cancellation of the mortgage through lawsuits known as “action for the annulment of the mortgage”.
According to another viewpoint, while the cancellation process has a constructive effect in creating a new situation visàvis third parties, it serves to clarify the existing situation in the relationship between the creditor and the debtor72. From the perspective of third parties, it is assumed that the mortgage recorded in the land registry both legally exists and materially exists. Therefore, it has been argued that the cancellation to be carried out would also have a constructive effect on third parties.
According to our view, it would be more accurate to accept that, in line with the principle of the mortgage being tied to the debt, the mortgage ceases to exist outside of official records upon the end of the debt. Article 883 of the Turkish Civil Code, which allows the mortgage right to be removed from the land registry with the consent of the creditor, does not imply that the mortgage cannot cease to exist outside of official records. While this provision outlines the procedure for the termination of the mortgage, it does not directly address whether the mortgage automatically terminates with the end of the debt. The Turkish Civil Code generally states that a registration of a right can be canceled upon the written declaration of the right holder; at the same time, it also regulates in Article 1026 that the cancellation process can be carried out upon the request of the owner of the property when the registration has no legal value anymore.
The reason for the Turkish Civil Code’s general rule of requiring the creditor’s consent for cancellation is the belief that the end of the debt can be most reliably determined with the creditor’s approval. Therefore, it should not be concluded that the mortgage right ceases to exist with the end of the debt and that a cancellation process in the land registry is required based on Article 883 of the Turkish Civil Code.
1. The Discharge of a Term Mortgage
Until recently, there were legal disputes regarding whether the owner could request the discharge of a term mortgage at the end of the term due to the lack of clear legal regulations on this matter. However, with the amendment introduced by Article 19 of Law No. 7181 on the Tapu Law and Amendments to Some Laws, a provision was added to Article 883 of the Turkish Civil Code, putting an end to these debates. As mentioned earlier, obtaining the consent of the creditor has been the safest way to determine the end of the debt. However, in the case of a term mortgage, where the importance of consent regarding the end of the debt has diminished, we believe that this provision was appropriate.
V. CONCLUSION
The mortgage right emerges as a collater al right tied to a debt. This characteristic of the mortgage right manifests itself in various stages. The appearance of this characteristic can be either absolute or more flexible, depending on the context.
The real estate mortgage is established through registration in the land registry. Registration serves as a constitutive element in acquiring a real right. For a registration to be valid, three basic elements must be present: the request for registration from the owner of the property, the existence of a valid acquisition reason, and the completion of the registration process. The acquisition reason, as a required legal basis for registration, is independent of the cause of acquisition. However, a fundamental contractual relationship outside of the acquisition reason is necessary for the establishment of the mortgage, in accordance with the accessory nature of the mortgage principle. The registration of the mortgage in the land registry does not constitute evidence of the existence and amount of the debt claim. While the absolute tie of the principal amount mortgage is inherent in the absolute debt, the principle of attachment to the debt appears more flexible in the case of the upper limit mortgage. This is because in the upper limit mortgage, the presence of a basic relationship that would lead to the birth of the debt or make the birth of the debt possible is sufficient.
The attachment of the mortgage to the debt is absolute during the stage of utilizing the right. Even if a mortgage is registered, it is acknowledged that if the debt specified in the mortgage contract does not arise, the mortgage right will not arise in favor of the creditor. In other words, the existence of the debt is required at the time of conversion into cash. The scope of security provided by the mortgage and the degree of security it provides to the creditor are primarily determined by the amount of the debt. In other words, the creditor can only obtain as much as they are owed at the time of conversion into cash.
The mortgage serves as security for a specific debt for which it was established.
General lien entries are provisions in mortgage contracts formulated to cover any future receivables without any limitation. There are different opinions regarding the source of this limitation. One view is based on Article 23 of the Turkish Civil Code, while another, which we agree with, argues that the expectations of an average bank customer should be taken into account.
The requirement for registration is necessary for the valid establishment of a mortgage, unlike for the transfer of the receivable. When the debt is transferred, the related mortgage automatically passes to the new creditor without the need for any registration process or changing the name of the mortgagee in the land registry. The person assuming the debt, apart from the debt secured by the mortgage, cannot benefit from the mortgage security based solely on the mortgage entry for other receivables arising from legal relationships with the debtor, unless otherwise stipulated in the mortgage contract.
In case of legal succession, for the guarantor to assume the mortgages, it is required that these mortgages either existed before the guarantee agreement was made or were established after the guarantee agreement specifically for the debt in question.
If a mortgage is established for a nonexistent debt or if the secured debt is terminated but the nonexistent debt is transferred, the new creditor cannot acquire the claim and the mortgage in good faith relying on the land registry entry. However, if there is a valid claim, the protection of Article 1023 of the Turkish Civil Code applies if the registration of the mortgage is fraudulent. In the case of legal succession, the guarantor should not benefit from the protection of Article 1023 of the Turkish Civil Code because the guarantor does not acquire the mortgage right through reliance on the land registry.
The mortgage right can pass to the transfer ee through the assignment of the contract. The rights granted by a third party in favor of the remaining party in the contract continue to exist. For a third party’s guarantee given in favor of the transferring party to continue, the consent of the third party is required.
If multiple debts are secured within the scope of the collateral, the payment of one or more debts that arose earlier does not terminate the mortgage materially.
The termination of the mortgage outside the registry upon the termination of the debt is a contentious issue. One view relies on Article 883 of the Turkish Civil Code (TCC) to argue that the mortgage will not terminate outside the registry without being formally terminated. Another view, which we support, holds that the mortgage right will terminate outside the registry along with the termination of the debt, as a natural consequence of the dependence of the mortgage on the debt. A third view suggests that the termination has a constitutive effect on third parties. Article 883 of the TMK does not preclude termination outside the registry, and if necessary, the owner can file a lawsuit under Article 1025 of the TMK to correct the record. The court decision and the subsequent termination will be explanatory in nature.
Article 883 of the Turkish Civil Code (TCC) introduces a new provision stating that the request of the owner will be sufficient for the termination of fixedterm mortgages. In the case of fixedterm mortgages, there is no need for the consent of the creditor, which is the safest way to prove that the debt has ended, and the regulation introduced is appropriate.
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FOOTNOTE
1 Erman, a.g.e., p. 180; Karahasan, a.g.e., p. 237; Sirmen, a.g.e., p. 642;
2 Oğuzman/ Seliçi/ Oktay-Özdemir, a.g.e., p. 949-950; Erman, a.g.e., p. 180; Sirmen, a.g.e., p. 642; Haluk Nami Nomer, Mehmet Serkan Ergüne, Eşya Hukuku, 7. bsk, İstanbul, On İki Levha Yayıncılık, 2019, p. 351; Ertaş, a.g.e., p. 565.
3 Aybay/ Hatemi, a.g.e., p. 39; Rona Serozan, “Taşınmaz Rehni”, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, C: LXIV, S: 2, 2006, p. 305.
4 Aktepe, a.g.m., p. 178.
5 Esener/ Güven, a.g.e., p. 501; Gürsoy/ Eren/ Cansel, a.g.e., p. 1101; Ertaş, a.g.e., p. 565.
6 Esener/Güven, a.g.e., p. 501; Gürsoy/ Eren/ Cansel, a.g.e., p. 1101.
7 YHGK, 19.9.2012 T., 2012/12-708 E., 2012/579 K. “However, there is no legal impediment to establishing an upper limit mortgage for a specified receivable…”(Kazancı İçtihat Bankası) (E.T. 22.11.2023). YHGK, 24.5.1989 T., 1989/11-294 E., 1989/378 K. “After the limit amount is determined in the same mortgage contract table…” (Kazancı İçtihat Bankası) (E.T. 22.11.2023).
8 Aybay/ Hatemi, a.g.e., p. 39; Erman, a.g.e., p. 181.
9 Serozan, a.g.m., p. 305; Sirmen, a.g.e., p. 643.
10 Rona Serozan, Eşya Hukuku I, 3. bsk, İstanbul, Filiz Kitabevi, 2014, p. 88; Sümer Altay/ Ali Eskiocak, Türk Medeni Hukukunda Taşınmaz Rehni, İstanbul, Vedat Kitapçılık, 2017, p. 217; Filiz Doğan, “İpotek Açısından Belirlilik İlkesi”, Türkiye Barolar Birliği Dergisi, 1992/3, p. 380; Gürsoy/ Eren/ Cansel, a.g.e., p. 1100; Esener/ Güven, a.g.e., p. 502; Karahasan, a.g.e., p. 237; Sirmen, a.g.e., p. 643; Ayan, a.g.e., p. 219; Nomer/ Ergüne, a.g.e., p. 352; Serozan, a.g.e., p. 89; Altay/ Eskiocak, a.g.e., p. 217; Akıntürk, a.g.e., p. 786; Şener, a.g.e., p. 12.
11 Oğuzman/ Özer/ Seliçi, a.g.e., p. 950; Sirmen, a.g.e., p. 643.
12 Özçelik, a.g.m., p. 158; Şener, a.g.e., p. 12.
13 Akıntürk, a.g.e., p. 787; Esener/ Güven, a.g.e., p. 500; Gürsoy/ Eren/ Cansel, a.g.e., p. 1100; Sirmen, a.g.e., p. 643; Ayan, a.g.e., p. 219; Serozan, a.g.e., p. 89; Y. 14. HD, 2004/3260 E., 2004/4870 K. “…In other words, a mortgage has been placed for an unborn debt.…” (Kazancı İçtihat Bankası) (E.T. 22.11.2023).
14 Y. 12. HD. 22.4.1980 T., 1980/1969 E., 1980/3718 K. “Since a mortgage (a type of lien placed on real estate to secure any kind of debt) is in question, the function of the mortgage is limited to providing real security to the creditor…” (Yavuz Selim Şener, “Türk Hukukunda İpotek ve Uygulaması”, Yüksek Lisans Tezi, Konya, Selçuk Üniversitesi SBE, 2004, p. 10).
15 Sirmen, a.g.e., p. 643.
16 Aybay/ Hatemi, a.g.e., p. 39; Ayiter, a.g.e., p. 178; Esener/ Güven, a.g.e., p. 503; Erman, a.g.e., p. 180; Ertaş, a.g.e., p. 565.
17 Aktepe, a.g.m., p. 180; Sirmen, a.g.e., p. 643; Esener/ Güven, a.g.e., p. 500; Erman, a.g.e., p. 181; Karahasan, a.g.e., p. 238; Sheida Javadkhani, “Türk Hukukunda İpotek”, Yüksek Lisans Tezi, Ankara, Ankara Üniversitesi SBE, 2016, p. 51.
18 Oğuzman/ Seliçi/ Oktay-Özdemir, a.g.e., p. 951; Erman, a.g.e., p. 181; Ertaş, a.g.e., p. 565; Altay/ Eskiocak, a.g.e., p. 217.
19 Esener/ Güven, a.g.e., p. 503.
20 Aktepe, a.g.m., p. 181; Erman, a.g.e., p. 181; Sirmen, a.g.e., p. 643; Altay/ Eskiocak, a.g.e., p. 217.
21 Erman, a.g.e., p. 182.
22 Sirmen, a.g.e., p. 643; Esener/ Güven, a.g.e., p. 502; Karahasan, a.g.e., p. 240; Altay/ Eskiocak, a.g.e., p. 217; Y. 14. HD, 13.3.2019 T., 2016/8067 E., 2019/2299 K. “A mortgage can be established for any existing debt or for a debt that is yet to arise but is certain or probable to arise (TMK.m. 881)…” (Kazancı İçtihat Bankası) (E.T. 23.11.2023) aynı yönde bkz. Y. 14 HD, 19.12.2014 T., 2014/8660 E., 2014/14587 K.
23 Özçelik, a.g.m., p. 160; Esener/ Güven, a.g.e., p. 470; Gürsoy/ Eren/ Cansel, a.g.e., p. 1100; Erman, a.g.e., p. 182; Nomer/ Ergüne, a.g.e., p. 352; Altay/ Eskiocak, a.g.e., p. 217.
24 Sirmen, a.g.e., p. 643.
25 Serdar Gören, “Rehin Türü Olan İpotek”, Yüksek Lisans Tezi, Konya, Selçuk Üniversitesi SBE, 2018, p. 50.
26 Y. 14. HD. 30.5.2011 T., 2011/5732 E., 2011/6960 K. “According to Article 875 of the Turkish Civil Code, the established mortgage is a mortgage for a definite debt...” (Kazancı İçtihat Bankası) (E.T. 23.11.2023) aynı yönde bkz. Y. 14. HD., 20.5.2014 T., 2014/2390 E., 2014/6546 K.
27 Aktepe, a.g.m., s. 181; Esener/ Güven, a.g.e., p. 501.
28 Gürsoy/ Eren/ Cansel, a.g.e., p. 1101.
29 Nomer/ Ergüne, a.g.e., p. 352.
30 Sirmen, a.g.e., p. 643; Oğuzman/ Seliçi/ Oktay-Özdemir, a.g.e., p. 952; Şener, a.g.e., p. 13; Akıntürk, a.g.e., p. 786 (yazar, bu durumun fer’ilik özellik hakkında şüphe uyandırdığını ifade etmektedir.).
31 Esener/ Güven, a.g.e., p. 501; Gürsoy/ Eren/ Cansel, a.g.e., p. 1100; Ertaş, a.g.e., p. 565; Altay/ Eskiocak, a.g.e., p. 217.
32 Oğuzman/ Seliçi/ Oktay-Özdemir, a.g.e., p. 951; Gürsoy/ Eren/ Cansel, a.g.e., p. 1100; Ertaş, a.g.e., p. 565; Altay/ Eskiocak, a.g.e., p. 217.
33 YHGK, 22.2.2012 T., 2011/12-778 E., 2012/94 K. “The request for the conversion of the mortgage into cash in enforcement proceedings is related to the objection process at the enforcement office...” (Kazancı İçtihat Bankası) (E.T. 23.11.2023).
34 Aktepe, a.g.m., p. 181; Şener, a.g.e., p. 14.
