Legal certainty in immovable property ownership depends on the register being kept in accordance with the true position. In practice, however, name errors, incorrect identity details, miscalculated share ratios and other material inaccuracies can find their way into the entries. Seemingly minor as they may be, these defects cause serious obstructions in transfers, inheritance devolutions and similar legal processes.
The action brought in order to remove material errors from the register and bring the entries into line with the true position is known as the action for correction of the land registry entry. It is resorted to in particular for inaccuracies that the land registry directorate cannot remedy of its own motion, or that give rise to a dispute between the parties.
Below we examine the conditions of the action, its legal basis, the conduct of the proceedings and the problems most frequently encountered in practice.
What Is the Action for Correction of the Land Registry Entry?
This action is brought in order to remove material errors and inaccuracies that have entered the register and to bring the entries into conformity with the true position. The result sought is not the complete removal of the existing entry; the aim is to correct the missing or incorrect information in the register.
Legal Nature of the Action
The action for correction of the land registry entry is a type of action directed at the removal of material inaccuracies in the register. What is sought here is not the alteration of the right in rem itself, but the correct reflection in the register of a right that already exists.
In this respect the action in most cases performs a declaratory and corrective function; it ensures that the register is brought into conformity with the true legal position.
Legal Basis of the Action
The action rests on the provisions requiring the register to be kept correctly and in accordance with the true position. The leading provision in this context is Turkish Civil Code No. 4721, Art. 1027. Under that provision, the land registrar may not remedy an inaccuracy in the register of his own motion unless the written consent of the interested parties is available. Where consent is absent, a court decision must therefore be obtained before the error can be removed.
In addition, the procedure and principles governing the keeping and correction of the register are also set out in the provisions of the Land Registry Regulation. Keeping the register in accordance with the true position is one of the fundamental principles serving legal certainty in immovable property law.
Which Inaccuracies in the Register May Be Corrected?
The subject matter of the action consists of material errors and inaccuracies that have entered the register. Within this scope, information incorrectly recorded in the register, spelling errors, deficiencies in identity details, calculation errors and similar material discrepancies may be corrected.
Not every inaccuracy in the entry, however, may be made the subject of this action. Where the dispute concerns the right of ownership itself or another right in rem, there is no longer a material error but a dispute over a right in rem calling for an action for annulment of title deed and registration. The first step must therefore be to determine accurately whether the inaccuracy at hand is purely technical in nature, or whether it constitutes a legal problem giving rise to an ownership dispute.
The Concept of Material Error
A material error means that information which ought to have been entered in the register has been recorded incorrectly, incompletely or defectively. In errors of this kind there is a technical or clerical discrepancy between the entry in the register and the true legal position.
A miscalculated share ratio, an incorrectly entered Turkish identity number, a misspelt forename or surname, and incomplete or incorrect recording of details relating to the property such as the parcel and the surface area all fall within this category. In inaccuracies amounting to a material error the aim pursued is not to alter the right in rem, but to bring the entry in the register into line with the true position.
Errors in Identity and Civil Registry Details
Foremost among the types of material error most frequently encountered in the register are inaccuracies in the owners’ identity and civil registry details. Particularly in older entries, civil registry details recorded incompletely or incorrectly can lead to serious obstructions in practice.
Inaccuracies that may be made the subject of the action in this context include errors in forenames and surnames, errors in the Turkish identity number, errors as to the father’s name and the date of birth, spelling and letter errors, and discrepancies between the civil registry records and the register.
Errors of this kind give rise to disputes in particular in sale transactions, inheritance transactions and devolution processes.
Errors Concerning the Property and the Shares
Material errors in the register are not confined to the owner details; inaccuracies concerning the property itself and the share ratios may also arise. Disputes arising from old cadastral records or from calculation errors are frequently encountered in practice.
Within this framework, inaccuracies in the share ratio, errors in the surface area and parcel details, material inaccuracies concerning the owner details, and spelling and calculation errors in the entries may be addressed within the scope of the correction action.
Where, however, the inaccuracy is of such a nature as to alter ownership directly, the boundary of material error will have been crossed, and the dispute will have to be assessed within the framework of an action for annulment of title deed and registration.
Errors That Land Registry Directorates May Remedy of Their Own Motion
It is not necessary to bring an action for every inaccuracy in the register. In certain cases permitted by law, land registry directorates may correct particular material errors and spelling inaccuracies of their own motion or upon the request of the interested parties. Obvious clerical errors, technical inaccuracies in identity details and certain entries incorrectly recorded in the register may be remedied by administrative act without the need for a court decision.
The land registry directorate’s power in this respect nevertheless has its limits. The correction to be made must not alter the existing position as to rights in rem, must not affect the rights of third parties and must not create a dispute. Otherwise, correction is possible only by court decision.
The Correction Power of the Land Registry Directorate
Land registry directorates have the power, under certain conditions, to remedy obvious material errors and spelling inaccuracies in the register. The purpose of this power is to ensure that the register is kept correctly and to allow technical inaccuracies to be corrected swiftly.
Letter and figure errors, spelling inaccuracies, obvious calculation errors and technical deficiencies in identity details may be corrected by the land registry directorate, provided that they give rise to no dispute and create no change in rights in rem.
Correction with the Consent of the Interested Parties
In some cases the inaccuracy in the register may be remedied by the joint request and express consent of the interested parties. Particularly in inaccuracies amounting to a material error, administrative correction by the land registry directorate is possible where the rightholders apply together.
In inaccuracies that can be clearly verified by civil registry records and official documents, the transaction can in most cases be completed without any need to bring an action.
Cases Requiring a Court Decision
Where the inaccuracy gives rise to a dispute, affects the position as to rights in rem, or where there is a difference of view between the interested parties, the land registry directorate cannot make a correction of its own motion. In such cases the change in the entry can be effected only by court decision.
Disputes concerning the right of ownership, disputes over share ratios, cases in which the owner details have become contentious, and changes to entries capable of affecting the rights of third parties are among the situations requiring a court decision.
Limits of the Power to Correct of Its Own Motion
The land registry directorate’s power to correct of its own motion is confined to obvious inaccuracies amounting to a material error. The directorate may not carry out a transaction in such a way as to alter an existing right in rem or to create a new right.
The correction to be made must therefore not alter ownership, must not create a new rightholder, must not affect the rights of third parties and must not cross the boundary of technical and material error. Once those limits are exceeded, the dispute will be resolved not by the administration but by the courts, by way of an action for correction of the land registry entry or an action for annulment of title deed and registration.
In Which Situations Is the Action Brought?
The action for correction of the land registry entry arises where material errors in the register cannot be remedied by the land registry directorate, or where the inaccuracy gives rise to a dispute between the parties. The impossibility of carrying out transactions over the property because the entries do not reflect the true position, the inability to conclude inheritance transactions, or the emergence of doubt as to who holds the right may make correction by court decision unavoidable.
The decisive point here is that the dispute concerns the material inaccuracy in the register and not the right of ownership. Where the dispute has turned into one over a right in rem, the matter is no longer a correction action but an action for annulment of title deed and registration.
No Result Obtained from the Land Registry Directorate
Land registry directorates may correct of their own motion only inaccuracies amounting to an obvious material error and the limited cases permitted by law. Where the inaccuracy requires technical examination, where there is a dispute between the parties, or where it is capable of affecting the position as to rights in rem, no transaction can be carried out by the directorate.
In such cases the interested parties must apply to the court and seek correction of the entry.
The Error Gives Rise to a Dispute
Where the inaccuracy in the register creates a dispute between the rightholders, correction cannot be made without a court decision. Where there is a difference of view between the parties as to the owner details, the share ratios or the technical data relating to the property, the dispute must be resolved by judicial means.
The action to be brought in this context aims at removing the inaccuracy in the register and bringing the entry into line with the true position.
Discrepancy Between the Owner Details and the Entry
One of the situations most frequently encountered in practice is that the owner details in the register do not correspond with the civil registry records or with official documents. Particularly in older entries, differences in forenames and surnames, errors in the father’s name, errors in the date of birth and incomplete identity details can make it difficult to carry out transactions over the property.
Where the inaccuracy cannot be remedied by the land registry directorate, an action for correction of the land registry entry arises in such files.
Errors Emerging in Inheritance and Share Transfer Transactions
Material errors in the register cause significant problems in particular in inheritance devolution, share transfers and the dissolution of joint ownership. Because of the incorrect information in the entry, succession transactions cannot be concluded, or the inheritance share ratios over the property may continue to appear incorrectly.
In these situations, the inaccuracy in the register must first be remedied so that legal transactions concerning the property can be carried out properly.
Mandatory Application to the Administration Before Bringing the Action
Under Article 75 of the Land Registry Regulation, an application must be made to the land registry directorate before a correction action is brought. Since this application is in the nature of a procedural requirement, an action brought without going to the land registry will meet with dismissal on procedural grounds. It is sufficient that the application has been rejected by the land registry; exhaustion of the entire administrative application route is not required.
In other words, the rejection decisions given by land registry directorates are regarded as sufficient to bring an action. Lodging an objection against those decisions with the Regional Directorates and the General Directorate has not been laid down as a procedural requirement.
Parties to the Action
Determining the parties accurately in this action is important for the proper conduct of the proceedings. Depending on the nature of the inaccuracy in the register, the capacities of claimant and respondent may vary; in some cases the rightholders concerned may also need to take part in the proceedings.
Before the action is brought, careful consideration must therefore be given to whom the inaccuracy affects and whose sphere of rights the correction will touch upon.
Who May Be Claimant
The action may be brought by persons having a legal interest in the removal of the inaccuracy in the register. The claimant must be directly affected by the existing inaccuracy or must have an interest worthy of protection in the correction.
Foremost among those holding this capacity are the persons appearing as owners in the register; alongside them, heirs and co-owners and other persons having a legal interest in bringing the action may also be claimants.
The right to bring an action arises in particular where the inaccuracy in the register prevents transactions from being carried out over the property, makes inheritance transactions more difficult, or makes it harder to establish who holds the right.
Who Must Be Named as Respondent
The respondent party is determined according to the nature of the inaccuracy. In some files the action is directed solely against the land registry directorate, while in others the Treasury or the rightholders concerned must also be named as parties.
Actions directed against the land registry directorate, actions brought against the Treasury, and cases in which the rightholders concerned must be joined to the proceedings are among the questions of standing most frequently encountered in practice.
Beyond this, where the correction to be made is capable of affecting the sphere of rights of third parties, joining those persons to the action may become mandatory. Otherwise, the action may be dismissed on procedural grounds because the parties have not been properly constituted.
For this reason, the scope of the inaccuracy in the register and whose rights the correction will touch upon must be assessed, and the action must be directed against the correct persons.
The Proceedings
Actions for correction of the land registry entry are treated among disputes relating to immovable property ownership and to the register, and they proceed within a particular procedural framework. For the action to conclude soundly, the court with subject-matter and territorial jurisdiction must be correctly identified, the evidence must be submitted in full, and the inaccuracy in the register must be established in concrete terms.
In files of this kind, land registry records, civil registry records, cadastral documents and expert examinations play a decisive role.
Court with Subject-Matter and Territorial Jurisdiction
In non-contentious matters such as the correction of identity details appearing in the register, the court with subject-matter jurisdiction is as a rule the Civil Court of Peace.
In corrections of this kind there is no ownership dispute between the parties over the property; the aim is solely to bring the register into conformity with the true position.
Where, by contrast, the inaccuracy gives rise to a dispute concerning the right of ownership, or where it is contested to whom the right in rem belongs, there can no longer be any question of a correction action. In that event the dispute is addressed, according to its nature, within the scope of an action for annulment of title deed and registration. As to territorial jurisdiction, the action is brought before the court of the place where the property is situated. Since the rule of exclusive jurisdiction applies to actions concerning the substance of immovable property, the action may be heard only before the court of the place where the property is situated.
Request for an Interim Injunction
An interim injunction may be sought in order to prevent the inaccuracy in the register from giving rise to new disputes while the proceedings are pending. In files where there is a possibility that the property will be transferred to third parties, an injunction annotation on the land registry entry may be requested.
Having regard to the particular features of the concrete case, the court may order that the transfer be prevented or that an annotation be entered in the register.
Court Fees and Expenses
In these actions the court fees and litigation expenses are determined according to the nature of the action and the scope of the dispute. Various items such as the application fee, the advance fee, the court-appointed expert’s fee, the cost of the on-site examination and service expenses may arise in the course of the proceedings. Where the action is upheld, those expenses are as a rule borne by the respondent party.
Proof and Evidence
The burden of proof that there is an inaccuracy in the register and as to what the true position is rests on the claimant. In this context the court assesses various official records and other evidence.
The evidence most frequently relied on in practice consists of civil registry records and cadastral records; to these are added land registry records and official documents, witness statements, expert examination and on-site examination.
Particularly in the case of older entries, it is of great importance that the connection between the civil registry records and the register can be established.
Attorney Fees
In these actions the attorney fee is determined according to the nature of the action. In actions directed solely at the correction of material errors and spelling inaccuracies, a fixed attorney fee is as a rule awarded.
The fee is determined on the basis of the provisions of the Minimum Attorney Fee Tariff in force on the date of the proceedings.
Appellate Remedies
Decisions given in actions for correction of the land registry entry may, where the conditions are met, be subject to appeal and to appeal on points of law.
On review by the higher court, matters relating in particular to the assessment of the evidence, the constitution of the parties, the court-appointed expert reports and the interpretation of the land registry records are frequently the subject of discussion.
Outcomes of the Action
The decision to be given at the end of the proceedings is directed at the removal of the material errors and inaccuracies in the register. What is sought by this action is not the complete removal of the existing entry, but bringing the register into line with the true legal position.
Once the decision has become final, the land registry directorate concerned makes the necessary corrections in the register and the entry is brought into conformity with the law.
Correction of the Entry
Where the action is upheld, the court orders the correction of the incorrect or incomplete information in the register. Within this scope, errors in identity details, errors in forenames and surnames, inaccuracies in the share ratio and spelling and calculation errors are remedied in accordance with the court’s decision.
Deletion of Erroneous Entries
It may be necessary for certain entries appearing in the register and amounting to a material error to be deleted altogether or removed from the register. In such a situation the court may order the deletion of the erroneous entries.
The aim here is not to extinguish a right in rem, but to clear from the register entries that lack a legal basis or contain a material error.
Removal of the Inaccuracy in the Register
With the court’s decision the inaccuracy in the register is removed and the entries are brought into conformity with the true position. It thereby becomes possible for legal transactions over the property to be carried out without difficulty.
The obstructions encountered in particular in sale transactions, inheritance transactions and share transfers are thus removed by the correction of the entry.
Bringing the Register into Conformity with the Law
The true purpose of the action is to ensure that the register correctly reflects the true legal position. In this respect the action serves the protection of legal certainty in immovable property ownership.
Through the corrections made in accordance with the court’s decision, the material discrepancies in the register are removed and the entry acquires an appearance that conforms with the law.
Independent Legal Assessment
In these files the stage that causes the greatest loss of time is most often not the proceedings themselves but the choice of the correct route. Bringing an action over a simple letter error leads to unnecessary expense, while framing as a correction action a dispute that in reality involves a contest over ownership results in dismissal on grounds of jurisdiction or characterisation. The first step must therefore be to establish whether the error remains within the technical boundary.
The second critical point is the procedural requirement. Since an action brought without applying to the land registry directorate will be dismissed without an examination of the merits, placing the rejection decision on the file is an indispensable part of the process.
In a concrete dispute, the following headings should be addressed first:
- Establishing at the outset whether the error is material in nature or concerns a right in rem
- Documenting the application made to the land registry directorate and the rejection decision obtained
- Gathering in advance the official documents that will establish the connection between the civil registry record and the register
- Assessing whether the correction touches upon the sphere of rights of third parties
- Determining whether the action must be directed against the land registry directorate, the Treasury or the rightholders concerned
- Requesting cadastral documents and an expert examination in the case of older entries
Independent Legal provides advisory services and conducts litigation throughout the entire process in disputes arising from the land registry, from the administrative application stage to the entry of the decision in the register.