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North Cyprus Property | Will 2013 Be the Year of Mortgage Law 11/78?

WITHOUT PREJUDICE

North Cyprus Property | Will 2013 Be the Year of Mortgage Law 11/78?

Phew, what a week this has been. A verbal attack on a man whose boot laces she is not fit to tie by a ‘lady’ who makes many nefarious claims and has an old lady dragged into the police station on bogus allegations. An old lady she knows has lost so much since she arrived in north Cyprus, an old lady who stands up to authority and tells it like it is, an old lady she claimed to be a friend to, an old lady who also opposes her way of doing things, this old lady has to be silenced, so as usual off comes the gloves and out comes the intimidation.

Well, hopefully this will now all stop, for if it continues it has been made abundantly clear, there will be consequences. For the first time it would seem, a wrong doer will be brought to book.

It is just so sad that this type of intimidation and bullying is widespread and would account for why so many victims of the property scams still have their heads stuck firmly in the sand. HISS, Head In Sand Syndrome is a hideous disease. The symptoms are easily spotted. The sufferer will have been hoodwinked by a builder/developer/landowner into parting with huge sums of money. They will have done their homework and tried to safeguard themselves against fraud, but unfortunately the parasites know their way around the ‘rules’ and are past masters at deceit and flattery, The sufferer starts with thinking these people are their friends and by the time they realise they are not, it is too late, the sufferer has parted with all their money. The Advocate aids and abets the villain, often representing both sides in the sale/purchase which of course they do not reveal to the purchaser. By the time the purchaser discovers the scam, they are in too deep and think that if they keep quiet, everything will be alright. Of course it won’t, but by then many sufferers, being a guest in a foreign land, feel they cannot rock the boat, or fear physical retribution if they even try. Such is the hold the perpetrators of these frauds have on their victims that many victims just find the first pile of sand, in goes their head and nothing you can say or do will convince them to pull their heads out and face their problems head on.

Is there any hope at all then? Well yes, there is, cases are now going to court and instead of there seeming to be no hope of winning, there is now reason to hope. Mortgage Law 11/78 section 21 has been brought out into the light of day. As the 78 within the title suggests, it has been on the Statute Books since 1978, so why it took so long to emerge is a complete mystery, or is it? Whatever the reason, we now have Banks saying, they too were hoodwinked, they did not know there were properties on the land they took as security or that the properties had been sold. Oh really, if that is so, I can only suggest that ‘a duty of care’ to protect your account holders money does exist and if you did not make all reasonable enquiries into the provenance of the land you so glibly lent on, you are guilty of negligence and not applying due diligence, Do not for one minute think you can make innocent people pay for your mistakes.

IGNORANCE OF THE LAW IS NO EXCUSE. To the Bank I say “you made the mistake, you pay the price”. Of course we know in the case of one particular Bank, a survey exists that predates the loan (mortgage) they gave and saying they did not know, will not wash. Wash, laundry, not words we want to apply to any bank we entrust our money to.

Just a small reminder of just what Mortgage Law 11/78 section 21 is about:

This is an explanation of Mortgage Law 11/78

According to section 21, of the TRNC Mortgage Law (No.11/78) a creditor when putting a mortgage on a property is obliged to search the property and declare the rights of other people on it. This rule of law means that the rights of other people on the property remain valid and should be respected. It further means that a mortgage covers only what is mentioned on the mortgage certificate and may not cover the houses or rights of other people not mentioned on the certificate. Only when a house is mentioned on the mortgage certificate, and the consent of the purchaser is obtained, can the rights of the purchaser be affected. Therefore according to the correct interpretation of the Mortgage Law, unless his house is mentioned in the mortgage certificate and his consent is obtained, the rights of a homebuyer remain intact. This principle brings us to the conclusion that in all other occasions sale contracts remain valid and have priority to the mortgage.

Unfortunately in TRNC, this clear rule of law is ignored by some local banks. They claim that when they put a mortgage on a property and declare that it is a bare land, houses on that land are also included in the mortgage. Following this logic, they claim that everything already built on the land, or going to be built later, will automatically become theirs. They insist that this illegal interpretation should be accepted by Courts. So that they can grab the houses of innocent people through mortgaging the lands on which houses are built on. This attempt is not only illegal but amounts to larceny in many countries of the world.

Yasal sorunun özü

KKTC İpotek Yasası (No. 11/78) ın 21 inci maddesine göre bir taşınmaz mal üzerine ipotek koyan alacaklının o taşınmaz mal üzerinde araştırma yapması ve üçüncü kişilerin haklarını ipotek takririne kaydetmesi gerekir. Yasanın bu hükmü ipotek konurken ipotekli mal üzerinde diğer kişilerin haklarının geçerli kalacağını ve bu haklara saygı duyulması gerektiğini ifade eder. Bu hüküm ayrıca bir ipoteğin sadece ipotek takririnde belirtilen malları kapsadığını ve ipotek takririnde belirtilmeyen mallarla hakları kapsamadığı anlamına gelir. Buna göre ev satın alan bir kişinin haklarının etkilenebilmesi için satılan evin ipotek takririnde belirtilmesi ve satın alan kişinin rıza göstermesi gereklidir. Bu durumda ipotek takririnde satılan malın belirtilmediği ve satın alanın rızasının alınmadığı tüm durumlarda sözleşme geçerli olmaya devam eder ve sözleşmenin ipoteğe göre önceliği olur.

Yasanın bu açık hükmüne rağmen maalesef KKTC de bazı yerel bankalar bu hükmü göz ardı etmektedirler. Bir taşınmaz mal üzerine ipotek koyup boş tarla olduğunu beyan ettikten sonra o tarla üzerindeki tüm evlerin ipoteğe dahil olduğunu iddia etmektedirler. Bu görüşten hareketle ipotekli tarla üzerinde yapılmış ve yapılacak olan evlere otomatik olarak sahip olmaya çalışmaktadırlar. Yasanın bu kabul edilemeyecek yorumunu mahkemelere kabul ettirme gayreti içindedirler. Böylece iyi niyetli saf insanların evlerini ipotek yöntemiyle gasp etmek istemektedirler. Dünyanın bir çok ülkesinde böyle bir girişim sadece yasa dışı ve geçersizolmayıp hırsızlık olarak da nitelenmektedir

Long may the furore this law is causing will continue.

Power to the people

Citizen Smith

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