Individual Application

The Facts

A mortgage was placed on the applicant’s immovable as a security of the home loan E.K. had taken out from a bank (“the Bank”). Having paid the last instalment of the loan, E.K. paid off the loan debt. However, two checks issued on behalf of the Incorporated Company Ö. within the scope of a commercial relationship between E.K. and it were made over and delivered to the Bank. The Bank commenced enforcement proceedings against E.K. for the collection of these two checks, which were finalized.

Following the full payment of the loan by E.K., the applicant requested the Bank to lift the mortgage. However, the Bank did not lift the mortgage on the ground that E.K. owed money to the bank due to the checks issued by E.K. in favour of the aforementioned Company and that enforcement proceedings were initiated regarding the said debts, stating that the mortgage would not be lifted since the debts were also within the scope of the mortgage.

The applicant brought an action before the civil court, seeking the lifting of the mortgage, which was concluded in her favour. However, the regional court of appeal quashed the first instance decision and dismissed the case, stating that it was an upper limit mortgage and that in such cases, in order for the mortgage to be lifted, there should not be any receivables secured by it under Article 851 of the Turkish Civil Code no. 4721. Upon the applicant’s subsequent appeal, the decision was upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant claimed that her right to property had been violated due to the refusal to lift the mortgage placed on the immovable as a security of third person’s claim.

The Court’s Assessment

It is laid down in Article 851 § 1 of Law no. 4721 that an immovable may be encumbered with a mortgage for a certain receivable, the amount of which is calculated in Turkish currency, and that unless the amount of the receivable is definite, the upper limit to be secured by the immovable, which will meet all demands of the creditor, shall be determined by the parties. It is also specified in Article 881 thereof that any existing receivables or those certainly or likely to arise may also be secured with a mortgage.

In the present case, it was stated in the first page of the mortgage bond that the debts arising from the loans used or to be used by E.K. were within the scope of mortgage; however, it was stated on the second page that the scope of the mortgage also covered the loans used by E.K. as well as his other banking and debt transactions and any debts incurred before the Bank. In this sense, it has been observed that there were contradictory provisions in the mortgage bond regarding the scope of the mortgage. However, it appears that the regional court of appeal made its decision relying on the provision included in the second page of the bond. Although the applicant filed an appeal, maintaining that such an issue pointed to the inconsistency between the will of the parties, the Court of Cassation failed to make an assessment on the issue.

Besides, it can be hardly inferred even from the provision included in the second page of the said mortgage bond that the mortgage also covered the debts owed by E.K. to third parties. Even if the scope of the debt is extended through the provision on the second page, it refers to E.K.'s other banking and debt transactions and any debts incurred before the Bank. It could hardly be understood from the wording of the relevant provisions that the debts owed by E.K. to third parties, which are appropriated by the Bank, will also be considered within the scope of the mortgage. Considering that the applicant is not a merchant, she cannot necessarily be expected to foresee in accordance with the relevant provision included in the mortgage bond that the debts arising from the commercial relations of E.K. with third parties but appropriated by the Bank are also within the scope of the mortgage.

The State’s obligation under the right to property does not only consist of establishing a legal framework, but it is also incumbent on the State to address the disputes related to mortgage within this legal framework and in compliance with the principle of foreseeability. In the present case, the applicant was placed a heavy burden, which was not reasonably foreseeable, due to the interpretation of the regional court of appeal.

As a result, the inconsistency between the will of the parties regarding the scope of the mortgage and its extension in a way unforeseeable for the applicant, thereby placing a disproportionate burden on her, caused a significant imbalance between the interests of the mortgagee and the mortgagor. Thus, it has been concluded that the State acted in breach of its positive obligations enshrined in Article 35 of the Constitution. 

Consequently, the Court has found a violation of the right to property.