Family Residence Annotation and Its Effect on Execution Proceedings

The notion of “family residence” entered our lives with the Turkish Civil Code No. 4721. Although the notion of family residence is mentioned in Article 194 of the Turkish Civil Code, we do not find the definition of the notion in the text of the article. The definition is mentioned in the introduction of the article: "family residence" is stated as "an area full of memories where spouses carry out all their life activities, direct their lives accordingly, and live through their bitter and sweet days." In doctrine, family residence is defined as "the house where the officially married husband and wife live together",  "the joint house that the spouses have chosen together and where they live together with their children, if any",  "the place that is considered the life center of the family", and "the residence that serves the spouses to live together in accordance with their will." The family residence is defined in Circular No. 2002/7 issued by the General Directorate of Land Registry and Cadastre on 01.06.2022, as the residence where the spouses carry out all of their life activities. 

Even if the spouses live in more than one house together, the family residence can only be one of them.  For instance, immovables such as summer houses, plateau houses, and mountain houses that are not permanently inhabited cannot be considered family residences. “…Because with the 194th Article of the Turkish Civil Code, it is aimed to protect not any house where the family lives or uses it, but the house, which is the center of life for the family; if it is lost, the family unity will be shaken financially and morally, and the family and the other spouse will lose their right to housing.” (Supreme Court Assembly of Civil Chambers Decision, 2011/2-447 File No., 2011/556 Decree No., 28.09.2011 Date.) The family residence annotation can be processed by submitting to the land registry directorate the non-owner spouse's extract of the civil registry proving that the marriage union continues and the document obtained from the neighborhood representative proving that the spouses live together in this residence.

Pursuant to Article 194/1 of the Turkish Civil Code, "One of the spouses cannot terminate the lease agreement regarding the family residence, transfer the family residence, or restrict the rights on the family residence without the express consent of the other spouse." As stated in the text of the article, this annotation prevents one of the spouses from disposing of the family residence without the consent of the other spouse.  Formerly, in accordance with the principle of trust in the title deed in judicial decisions, if there was no family residence annotation on the deed during the transaction, it was decided to protect the earnings of the third party to the transaction in good faith. For instance, if a mortgage was established on an immovable property and there was no annotation in the land registry that it was a family residence, the obtainment of the third person who took the mortgage was protected if he had good faith. (TCC art. 1023) However, with the decision of the Assembly of Civil Chambers 15.04.2015 Date., 2013/2-2056 File no. 2015/1201 Decree no., the practice was changed and the decisions began to be made in accordance with "the restriction imposed on the juridical capacity of the spouses with the provision of 194 is to put an annotation on the family residence, or it is not subject to the condition of not being placed, and it does not matter whether the third party, who is a party to the agreement. ” After this process, even if there is no family residence annotation on the immovable, if the immovable is a family residence, it is benefited from this protection. "…With the provision of this article, although the family residence annotation is not "issued," the juridical capacity of the spouses on the family residence where they live together is restricted." The restriction was designated not because the family residence annotation was put in but because it already exists. For this reason, even if a family residence annotation is not given to the title deed, that residence has the specifications of a family residence. Because the immovable subject of the lawsuit is a family residence even if an annotation is not put. Along similar lines, it does not count as a family residence only because of putting an annotation. On the contrary, it can be put an annotation because it is a family residence. As a result, when the annotation on the family residence is put, it has the specifications of a declaratory annotation rather than a "constitutive" annotation. The restriction brought by the provision of the aforementioned article is of a "mandatory" nature. Therefore, this right cannot be abdicated beforehand, nor can it be invalidated by the agreement of the spouses, and explicit consent can only be given for a "specific" transaction." (The 2nd Civil Chamber of the Supreme Court – 25.05.2017 Date., 2016/6764 File no. 2017/6194 Decree no.)

In Article 194/1 of the Turkish Civil Code, it is stipulated that the requested consent should be explicit, and the form of validity has not been determined. For this reason, consent can also be given orally without being subject to a specific form. However, in this case, it may be difficult to prove that the consent is "explicit."

In the matter of the effect of the family residence annotation on the enforcement proceedings, the family residence annotation does not prevent the sale of the immovable property as a result of an execution proceeding by the creditors due to the debt of the debtor. It is possible for an immovable with a family residence annotation to be confiscated or sold by way of compulsory execution. Although the existence of an annotation in itself does not constitute an obstacle to enforcement proceedings, the person concerned with the annotation of the family residence should be informed, as should the other right holders on the immovable. For instance, if the date of sale of the immovable has been received, the announcement of the sale of the immovable must also be notified to the person concerned with the annotation of the family residence. In addition, the fact that the immovable is a family residence does not prevent this immovable from being confiscated.

Since the establishment of a mortgage on the family residence is a process that restricts rights, the explicit consent of the non-owner spouse is sought. For this reason, banks require the consent of the other spouse when they provide housing loans. However, in my opinion, if the family residence is owned with a loan from the bank, it is against the ordinary course of life to accept that the non-owner spouse is not aware of this situation. There was a difference of opinion among the members of the Assembly of Civil Chambers on this issue, and according to the minority opinion; “…Although it has been argued that it is against the ordinary course of life to acknowledge that the claimant spouse was not aware of the loan used by the joint children who led to the establishment of the mortgage transaction and lives under the same roof with the claimant and the respondent spouse, this opinion was not adopted by the majority of the Board.”

The family residence annotation brings some protections to the non-owner spouse regarding the residence where the family lives, and the disposals on the immovable are restricted in the absence of the spouses' explicit consent.

Sinem Çiftçi

REFERENCES

- Law No. 4721 of the Turkish Civil Code

- Law No. 4721 on the Enforcement and Implementation of the Turkish Civil Code

- The order of the Supreme Court Assembly of Civil Chambers 28.09.2011 Date., 2011/2-447File no. 2011/556 Decree no.

- The order of the Supreme Court Assembly of Civil Chambers 15.04.2015 Date., 2013/2-2056 File no. 2015/1201 Decree no.

- The 2nd Civil Chamber of the Supreme Court – 25.05.2017 Date., 2016/6764 File no. 2017/6194 Decree no.