WHAT IS WITHDRAWAL OF FORGIVENESS?

Withdrawal of forgiveness;

• Committing a serious crime against the donor or one of his relatives,
• Failure of the donated person to fulfill his or her family obligations to a large extent
• Failure to fulfill the condition agreed upon in conditional donation

is possible in such cases.

• Commission of a serious crime against the donor or one of his relatives: What falls within the scope of the concept of serious crime should be examined separately for each concrete case. For example, while the crime of insult is not considered a serious crime within the scope of Criminal Law, the crime of insult committed against the donor may be considered serious and cause the donation to be withdrawn. In the Supreme Court decisions regarding the withdrawal of forgiveness; Crimes such as insult, threat, extortion and intentional injury are also considered serious crimes. A final conviction is not required for forgiveness to be withdrawn. It is even accepted that forgiveness can be withdrawn even if no prosecution has been initiated or no complaint has been made about the crime.
• Failure of the donated person to fulfill his/her family obligations arising from the law to a large extent: In this article, unlike the previous article, the legislator has listed only the failure to fulfill legal obligations towards the donor and his/her family as a reason for the withdrawal of the donation. For example, if the spouses do not comply with the obligation of fidelity, leave the common residence, or harm the other spouse or their relatives, the forgiveness may be withdrawn. However, the exercise of a legal right by the donated person, for example, initiating enforcement proceedings for a debt, cannot be accepted as a reason for recourse against the donation.
• Failure to fulfill the condition agreed upon in conditional donation: If, while making a donation, it was decided that certain actions or transactions would be carried out by the donated party and the donated person did not fulfill the condition even though he did not have a justifiable reason, it is possible to withdraw from the donation. Although the content of the concept of just cause is not specified in the law, in practice the expenses required to fulfill the condition are much higher than the donation value, etc. It seems that these situations are considered as justified reasons.

Can Donations Made to the Foundation Be Refunded?

When conditional donations are made to foundations, if these conditions are not met without a justified reason, the donor may exercise the right to withdraw the donation. In addition, the heirs of the donor may file a lawsuit for retaliation if their reserved shares have been violated.

Is it Possible to Revoke Donation for Heirs?

If the donor dies within one year from the date of donation, the right to withdraw from the donation passes to the heirs. Heirs may use the reason for withdrawing from donation during the remainder of the one-year period following the donation. However, if the donor did not learn the reason for the revocation before his death, the period for the heirs to exercise the right of revocation starts from the date of death.

Which Court is in Charge of Recourse Case Without Forgiveness?

If recourse cases are filed in the form of title deed cancellation and registration cases, the competent and competent court is the Civil Courts of First Instance where the real estate is located. Recourse cases regarding donations regarding movable property will also be heard in the Civil Court of First Instance.

Is There a Statute of Limitations for Cancellation of Donation?

The donor may cancel the donation within a period of one year from the date on which he learns the reason for reversing the donation.  The contract is terminated with retroactive effect upon the unilateral declaration of will of the donor. After the donor withdraws the donation, he may request the return of the donation from the court in accordance with the provisions of unjust enrichment. The donor must exercise this right within the two-year statute of limitations from the date on which he learned the reason for the cancellation of the donation.

Can Donated Deed Be Cancelled?

The donated deed can also be canceled by the donor and his heirs in case of death, if the above conditions are met. In addition, in case of evasion of property from the inheritance, a lawsuit for cancellation of title deed can be filed without being subject to the statute of limitations. The heirs whose reserved shares have been violated may also file a lawsuit for reduction and request annulment in proportion to their shares corresponding to the reserved shares of the title deed.

Withdrawal of Forgiveness Supreme Court Decisions

1\. Legal Department 2016/4147 E. 2019/341 K. 21.01.2019 T._

"The case is about the request for title deed cancellation and registration based on the legal reason for revocation from donation, and the court decided to reject the case. According to Article 297 of the TBK (Old Code of Law 246), the donor can withdraw the donation within 1 year, starting from the day on which he learned the reason for revocation. In the concrete case, 21 years have passed since the donation until the date of the lawsuit. Therefore, a 1-year limitation period has passed. The rejection is correct for this reason, and the objections of the plaintiffs that are not considered appropriate are rejected, and the verdict, which is in accordance with the procedure and the law, is approved..."

1\. Legal Department 2013/13321 E. 2013/17040 K. 02.12.2013 T.)_

“From the content of the file and the evidence collected, it is seen that the plaintiff has transferred the immovable property numbered 59 parcel, which he registeredly owns, to the defendant for the construction of a police station, that the immovable property is still registered in the name of the Treasury of Finance, and that in the decision taken on 01/11/1992 in the Village decision book, it was decided to give immovable property to the treasury for the construction of the police station building, with the letter of the Provincial Gendarmerie Command dated 28.02.2005.” It is understood that the plaintiff, who requested the abolition of Yiğitler Police Station, filed the lawsuit claiming that the police station building was not built. As it is known, according to the provision of Article 297 of the Turkish Code of Obligations, the donor may revoke the donation within one year, starting from the day on which he learned the reason for the revocation. In the concrete case, the letter of the Provincial Gendarmerie Command dated 28.02.2005, in which the plaintiff continues to think that a police station will be built until 2010, is an inter-institutional correspondence, and it is understood that there is no evidence that the plaintiff was aware of this letter, that there is no concrete evidence to show that the plaintiff filed his lawsuit after the one-year limitation period stipulated in Article 297 of the Turkish Code of Obligations, from the date on which he learned for certain that a police station would not be built, and that the case should be accepted as having been filed within due time.”

1\. Legal Department 2021/4720 E. 2022/4841 K. 15/06/2022 T.

“If the donated person has not fulfilled the obligation without a justifiable reason in the donation donation.” It was ruled as follows. The legislator provided a parallelism between the first and second paragraphs of Article 295 of the said TBK and Article 510 of the Turkish Civil Code (TMK) No. 4721, which regulates the reasons for disinheritance, and wanted to save the beneficiary of the donation from the constant pressure of the donor. In addition to the drawback mentioned above, considering really simple events as reasons for recourse will not only create a situation contrary to the purpose pursued in the explained articles of law, but also damage the feelings of right and justice. In this respect, it is necessary to evaluate the provisions of both articles together and take into account the scope, characteristics and especially the degree of seriousness of the events. It should be noted right away that; Since withdrawal from donation (recourse) is an innovative right that terminates an established contract according to reasons that arise later, the donated person is only obliged to give the amount remaining in his possession at the time of withdrawal (recourse). This right is TBK. According to Article 297 of the TCIP, it must be used within one year after the reason for the withdrawal is learned.”

Title deed cancellation and registration cases through recourse from donation are high-stakes cases. Procedural errors that may be made during the trial process of these cases may negatively affect the cases, and in some cases, it may even be possible to reject the case. Therefore, it is important to act through a real estate lawyer who specializes in filing such cases.

In this article, we talked about withdrawal of forgiveness. You can also send any questions you want to ask about the subject to our office in the comments section.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy