چگونگی الزام به تنظیم سند رسمی

در این مقاله به چگونگی الزام به تنظیم سند رسمی خواهیم پرداخت.

با انعقاد قرارداد عادی راجع به مال غیرمنقول و واگذاری حقوق مالکانه فروشنده به خریدار ، معمولاً متعاملین مواردی را در خصوص زمان و نحوه  تنظیم سند رسمی و امور راجع به آن ، مورد تعهد قرار می دهند که گاهی به لحاظ عدم اجرای تعهدات از سوی خریدار یا فروشنده ، طرف دیگر ناگزیر به اقامه دعوی می شود.

اصولا به لحاظ اهمیت خاص این نوع دعاوی ، خواهان باید با تدبیر و ظرافت خاص به اقامه دعوی مبادرت ورزد. طرح این دعوی در محاکم دارای چنان ظرافتی است که گاهی بکارگیری کلمات در جای مناسب یا غیر آن ، ممکن است در سرنوشت دعوی تاثیر گذارد. اگر دادخواست به نحو صحیح تنظیم نشود و خواهان به نکات اساسی و مهم ، بالاخص ریزه کاریها و نکات ظریف و جنبه های قانونی تنظیم آن توجه ننماید ، ممکن است مطالب مندرج در دادخواست یا لایحه به وسیله خوانده ،علیه خواهان مورد استناد قرار گیرد و حکم به ضرر خواهان صادر گردد.

در تنظیم دادخواست مذکور باید موارد مندرج در قرارداد و مقررات حاکم بر عقد بیع و نیز مقررات قانونی راجع به قراردادهای خصوصی و عقود، مورد توجه واقع شود.

در این دعوی باید به دادگاه توضیح داده شود که با انعقاد بیع بین طرفین معامله ای واقع شده که بر اساس آن باید مبیع به خواهان منتقل گردد و یا اگر قرارداد تعهد به بیع است (قولنامه) باید اظهار نمود قرارداد لازم الوفاست ( جهت مشاهده موارد اختلاف به لینک قولنامه مراجعه نمائید ) اگر احتمال دارد که فروشنده نسبت به ملک معامله معارض انجام دهد و یا به دلایل دیگر مشکلاتی در انتقال سند به وجود آید ، بهتر است ضمن درخواست ، صدور قرار تامین خواسته یا دستور موقت را نیز از دادگاه تقاضا نماید. در این دعوی باید حسب عقیده کسانی که قرارداد عادی را بیع می دانند ، تحقق بیع را ثابت کرد و اثبات نمود که فروشنده از شروط قرارداد تخلف نموده است. چنین ادعایی در معارضه با مالکیت طرف دعوی می باشد و چون جدال حقوقی علیه مالکیت رسمی طرف دعوی می باشد ، لذا انتقال مالکیت به خریدار مستلزم اثبات وقوع صحت معامله است.

دادگاه قبل از تصمیم گیری مالکیت خوانده ( فروشنده ) را استعلام می نماید. اگر ملک مورد معامله از املاکی باشد که تفکیک یا افراز نشده ، باید ضمن دعوی الزام به تنظیم سند رسمی ، تفکیک یا افراز مورد معامله را از دادگاه تقاضا نمود وگرنه دعوی رد خواهد شد زیرا در اینصورت حکم دادگاه قابلیت اجرا نداشته و صدور حکم مشاعی و مشارکت دادن خریدار در قسمتی از کل عرصه و اعیان پلاک ثبتی مورد معامله نیز صحیح نیست و ممکن است با حقوق سایر مالکین در تعارض قرار بگیرد و مغایر قرارداد طرفین نیز می باشد.

گاهی مبیع آپارتمانی است که هنوز پایان کار ساختمان از سوی شهرداری صادر نگردیده. در اینصورت نیز صرف درخواست تنظیم سند رسمی فایده ای برای خواهان نخواهد داشت زیرا اخذ پایان کار و صورت مجلس تفکیکی مقدم بر سند رسمی است. پس این خواسته نیز باید به خواسته اصلی اضافه گردد.

نکته : پس از صدور حکم قطعی و انتقال مورد معامله خریدار حق دارد از تاریخ امتناع از تسلیم مورد معامله اجرت المثل ایام تصرف را از فروشنده مطالبه نماید.

درخواست کلیه خسارات قانونی از جمله هزینه دادرسی و حق الوکاله وکیل و… حتما در ستون خواسته ذکر شود.

دعوی انتقال سند رسمی راجع به ملکی که در رهن یا توقیف است تا قبل از فک رهن و رفع توقیف غیر قابل استماع می باشد.

در مواردی که قرارداد با شخصی غیر از مالک اصلی از جمله پیمانکار منعقد گردیده  الزاماً مالک اصلی (شخصی که در دفتر املاک ، ملک مورد معامله بنام او ثبت می باشد) نیز باید در ستون خوانده قرارگیرد و به دادرسی دعوت شود ، در غیر این صورت دعوی خواهان رد می گردد. لازم به ذکر است وکیل صرفاً واسطه انعقاد عقد بوده و تعهد ناشی از قرارداد بر عهده موکل خواهد بود و اقامه دعوی الزام به تنظیم سند رسمی علیه وکیل فاقد وجاهت قانونی می باشد.

در دعوی الزام به حضور در دفتر اسناد رسمی و انتقال قطعی سهم متوفی ، باید کلیه ورثه طرف دعوی قرار گیرند و استماع دعوی لزوماً نیازی به صدور سند مالکیت به قدرالسهم ، بنام هر یک از ورثه ندارد.

منبع:علی عبدی وکیل پایه یک

مطالب مرتبط

  • 81
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    کسانی که قصد خرید یا اجاره ملکی را دارند باید چه نکاتی را رعایت کنند تا احتمال کلاهبرداری کاهش پیدا کند؟  1 - از اعتماد بیجا جداً پرهیز نموده حتی به نزدیکترین افراد هم اعتماد نکنید و خودتان شخصاً یا به کمک وکیل بررسیهای کافی را انجام دهید چه بسا…
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  186. Today, I went to the beachfront with my children. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She put the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is totally off topic but I had to tell someone!

  187. Howdy this is kinda of off topic but I was wanting to know if blogs use WYSIWYG editors or if you have to manually code with HTML. I’m starting a blog soon but have no coding experience so I wanted to get guidance from someone with experience. Any help would be greatly appreciated!

  188. Heya! I understand this is sort of off-topic however I needed to ask. Does managing a well-established blog like yours require a large amount of work? I am completely new to running a blog but I do write in my diary daily. I’d like to start a blog so I will be able to share my personal experience and feelings online. Please let me know if you have any kind of recommendations or tips for brand new aspiring blog owners. Thankyou!

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  256. Heya! I understand this is kind of off-topic however I had to ask. Does managing a well-established blog like yours take a massive amount work? I am completely new to operating a blog however I do write in my diary daily. I’d like to start a blog so I can share my personal experience and views online. Please let me know if you have any recommendations or tips for new aspiring bloggers. Appreciate it!

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  266. Hiya! I know this is kinda off topic nevertheless I’d figured I’d ask. Would you be interested in trading links or maybe guest writing a blog post or vice-versa? My blog addresses a lot of the same subjects as yours and I think we could greatly benefit from each other. If you’re interested feel free to shoot me an e-mail. I look forward to hearing from you! Terrific blog by the way!

  267. Greetings! I know this is kinda off topic however I’d figured I’d ask. Would you be interested in trading links or maybe guest writing a blog post or vice-versa? My website covers a lot of the same subjects as yours and I think we could greatly benefit from each other. If you happen to be interested feel free to send me an e-mail. I look forward to hearing from you! Great blog by the way!

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  270. I was curious if you ever thought of changing the page layout of your site? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having one or 2 images. Maybe you could space it out better?

  271. Whats up this is kind of of off topic but I was wanting to know if blogs use WYSIWYG editors or if you have to manually code with HTML. I’m starting a blog soon but have no coding skills so I wanted to get guidance from someone with experience. Any help would be greatly appreciated!

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  273. Hey there! I know this is kinda off topic but I was wondering which blog platform are you using for this website? I’m getting fed up of WordPress because I’ve had problems with hackers and I’m looking at alternatives for another platform. I would be awesome if you could point me in the direction of a good platform.

  274. Howdy! Quick question that’s entirely off topic. Do you know how to make your site mobile friendly? My website looks weird when viewing from my iphone4. I’m trying to find a theme or plugin that might be able to fix this problem. If you have any suggestions, please share. With thanks!

  275. Hmm it seems like your blog ate my first comment (it was extremely long) so I guess I’ll just sum it up what I submitted and say, I’m thoroughly enjoying your blog. I too am an aspiring blog blogger but I’m still new to the whole thing. Do you have any points for rookie blog writers? I’d really appreciate it.

  276. Hmm it looks like your website ate my first comment (it was super long) so I guess I’ll just sum it up what I had written and say, I’m thoroughly enjoying your blog. I too am an aspiring blog blogger but I’m still new to the whole thing. Do you have any helpful hints for newbie blog writers? I’d definitely appreciate it.

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  282. Today, I went to the beach with my kids. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She put the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is entirely off topic but I had to tell someone!

  283. I’m truly enjoying the design and layout of your website. It’s a very easy on the eyes which makes it much more enjoyable for me to come here and visit more often. Did you hire out a designer to create your theme? Exceptional work!

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  292. Write more, thats all I have to say. Literally, it seems as though you relied on the video to make your point. You definitely know what youre talking about, why throw away your intelligence on just posting videos to your site when you could be giving us something enlightening to read?

  293. Today, I went to the beach with my kids. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She placed the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is completely off topic but I had to tell someone!

  294. Howdy! I realize this is sort of off-topic however I needed to ask. Does building a well-established website such as yours require a lot of work? I am brand new to operating a blog however I do write in my diary on a daily basis. I’d like to start a blog so I will be able to share my personal experience and views online. Please let me know if you have any ideas or tips for new aspiring bloggers. Appreciate it!

  295. Hey! I just wanted to ask if you ever have any trouble with hackers? My last blog (wordpress) was hacked and I ended up losing several weeks of hard work due to no backup. Do you have any solutions to protect against hackers?

  296. Wow that was strange. I just wrote an really long comment but after I clicked submit my comment didn’t appear. Grrrr… well I’m not writing all that over again. Anyhow, just wanted to say fantastic blog!

  297. This design is spectacular! You definitely know how to keep a reader amused. Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Wonderful job. I really loved what you had to say, and more than that, how you presented it. Too cool!

  298. I do not know if it’s just me or if perhaps everyone else experiencing problems with your site. It appears as though some of the written text in your content are running off the screen. Can someone else please provide feedback and let me know if this is happening to them as well? This could be a problem with my browser because I’ve had this happen previously. Kudos

  299. I know this if off topic but I’m looking into starting my own blog and was wondering what all is needed to get setup? I’m assuming having a blog like yours would cost a pretty penny? I’m not very internet smart so I’m not 100% sure. Any recommendations or advice would be greatly appreciated. Appreciate it

  300. I was wondering if you ever thought of changing the page layout of your blog? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having 1 or 2 pictures. Maybe you could space it out better?

  301. Hi! Quick question that’s completely off topic. Do you know how to make your site mobile friendly? My website looks weird when browsing from my iphone 4. I’m trying to find a template or plugin that might be able to resolve this problem. If you have any recommendations, please share. Many thanks!

  302. Whats up this is kind of of off topic but I was wondering if blogs use WYSIWYG editors or if you have to manually code with HTML. I’m starting a blog soon but have no coding expertise so I wanted to get advice from someone with experience. Any help would be greatly appreciated!

  303. Wow that was unusual. I just wrote an incredibly long comment but after I clicked submit my comment didn’t show up. Grrrr… well I’m not writing all that over again. Anyway, just wanted to say excellent blog!

  304. Today, I went to the beach front with my kids. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She put the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is totally off topic but I had to tell someone!

  305. With havin so much written content do you ever run into any problems of plagorism or copyright violation? My site has a lot of exclusive content I’ve either created myself or outsourced but it appears a lot of it is popping it up all over the web without my authorization. Do you know any techniques to help stop content from being ripped off? I’d genuinely appreciate it.

  306. Do you have a spam issue on this site; I also am a blogger, and I was curious about your situation; many of us have developed some nice procedures and we are looking to swap strategies with others, be sure to shoot me an email if interested.

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  308. Hey there! I’m at work surfing around your blog from my new apple iphone! Just wanted to say I love reading through your blog and look forward to all your posts! Keep up the excellent work!

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  310. Have you ever thought about adding a little bit more than just your articles? I mean, what you say is valuable and all. Nevertheless think about if you added some great graphics or videos to give your posts more, “pop”! Your content is excellent but with images and clips, this site could certainly be one of the greatest in its niche. Terrific blog!

  311. Hi terrific website! Does running a blog like this require a large amount of work? I have absolutely no expertise in computer programming however I had been hoping to start my own blog in the near future. Anyhow, should you have any recommendations or techniques for new blog owners please share. I understand this is off subject however I simply had to ask. Thanks!

  312. Write more, thats all I have to say. Literally, it seems as though you relied on the video to make your point. You clearly know what youre talking about, why waste your intelligence on just posting videos to your weblog when you could be giving us something informative to read?

  313. I know this if off topic but I’m looking into starting my own blog and was curious what all is needed to get setup? I’m assuming having a blog like yours would cost a pretty penny? I’m not very internet smart so I’m not 100% sure. Any recommendations or advice would be greatly appreciated. Many thanks

  314. Have you ever thought about creating an e-book or guest authoring on other blogs? I have a blog based on the same ideas you discuss and would really like to have you share some stories/information. I know my audience would appreciate your work. If you are even remotely interested, feel free to shoot me an email.

  315. Hey there just wanted to give you a quick heads up. The words in your article seem to be running off the screen in Opera. I’m not sure if this is a formatting issue or something to do with browser compatibility but I figured I’d post to let you know. The style and design look great though! Hope you get the problem solved soon. Cheers

  316. Hmm it appears like your site ate my first comment (it was super long) so I guess I’ll just sum it up what I wrote and say, I’m thoroughly enjoying your blog. I too am an aspiring blog blogger but I’m still new to the whole thing. Do you have any tips for beginner blog writers? I’d genuinely appreciate it.

  317. Hey! I know this is somewhat off-topic but I had to ask. Does running a well-established website such as yours take a lot of work? I’m completely new to operating a blog however I do write in my journal everyday. I’d like to start a blog so I can easily share my own experience and feelings online. Please let me know if you have any suggestions or tips for brand new aspiring blog owners. Appreciate it!

  318. First of all I would like to say awesome blog! I had a quick question which I’d like to ask if you don’t mind. I was interested to know how you center yourself and clear your mind before writing. I’ve had a hard time clearing my mind in getting my thoughts out there. I truly do enjoy writing however it just seems like the first 10 to 15 minutes are generally wasted just trying to figure out how to begin. Any suggestions or tips? Appreciate it!

  319. I don’t know if it’s just me or if perhaps everybody else experiencing problems with your site. It appears as if some of the written text within your posts are running off the screen. Can someone else please provide feedback and let me know if this is happening to them too? This may be a problem with my browser because I’ve had this happen before. Cheers

  320. My programmer is trying to persuade me to move to .net from PHP. I have always disliked the idea because of the costs. But he’s tryiong none the less. I’ve been using WordPress on numerous websites for about a year and am anxious about switching to another platform. I have heard good things about blogengine.net. Is there a way I can transfer all my wordpress posts into it? Any kind of help would be really appreciated!

  321. Heya this is kinda of off topic but I was wanting to know if blogs use WYSIWYG editors or if you have to manually code with HTML. I’m starting a blog soon but have no coding knowledge so I wanted to get advice from someone with experience. Any help would be greatly appreciated!

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  324. Awesome blog! Do you have any suggestions for aspiring writers? I’m hoping to start my own website soon but I’m a little lost on everything. Would you propose starting with a free platform like WordPress or go for a paid option? There are so many options out there that I’m totally confused .. Any ideas? Thanks!

  325. This design is wicked! You certainly know how to keep a reader amused. Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Fantastic job. I really loved what you had to say, and more than that, how you presented it. Too cool!

  326. I absolutely love your blog and find almost all of your post’s to be exactly what I’m looking for. Do you offer guest writers to write content available for you? I wouldn’t mind publishing a post or elaborating on a number of the subjects you write related to here. Again, awesome web site!

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  328. Hey there just wanted to give you a quick heads up and let you know a few of the pictures aren’t loading properly. I’m not sure why but I think its a linking issue. I’ve tried it in two different browsers and both show the same results.

  329. Have you ever considered publishing an ebook or guest authoring on other blogs? I have a blog based upon on the same information you discuss and would love to have you share some stories/information. I know my visitors would value your work. If you’re even remotely interested, feel free to send me an e-mail.

  330. When I originally commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get four emails with the same comment. Is there any way you can remove me from that service? Thank you!

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  332. I was curious if you ever considered changing the layout of your website? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having one or 2 pictures. Maybe you could space it out better?

  333. I love your blog.. very nice colors & theme. Did you design this website yourself or did you hire someone to do it for you? Plz respond as I’m looking to construct my own blog and would like to find out where u got this from. appreciate it

  334. Hey there excellent blog! Does running a blog like this require a great deal of work? I’ve virtually no knowledge of programming however I had been hoping to start my own blog in the near future. Anyways, should you have any suggestions or techniques for new blog owners please share. I know this is off subject but I simply needed to ask. Many thanks!

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  337. Have you ever thought about including a little bit more than just your articles? I mean, what you say is important and all. Nevertheless just imagine if you added some great visuals or videos to give your posts more, “pop”! Your content is excellent but with images and video clips, this website could undeniably be one of the very best in its niche. Great blog!

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  339. I am curious to find out what blog system you have been working with? I’m having some minor security problems with my latest site and I would like to find something more safe. Do you have any suggestions?

  340. Very good blog! Do you have any recommendations for aspiring writers? I’m hoping to start my own blog soon but I’m a little lost on everything. Would you suggest starting with a free platform like WordPress or go for a paid option? There are so many options out there that I’m totally confused .. Any suggestions? Thanks a lot!

  341. My partner and I stumbled over here by a different page and thought I might as well check things out. I like what I see so now i’m following you. Look forward to finding out about your web page repeatedly.

  342. Hiya! I know this is kinda off topic however I’d figured I’d ask. Would you be interested in trading links or maybe guest writing a blog article or vice-versa? My website covers a lot of the same topics as yours and I believe we could greatly benefit from each other. If you might be interested feel free to send me an e-mail. I look forward to hearing from you! Wonderful blog by the way!